Ramos v.

CA
Facts:
Erlinda Ramos, a 47-year old robust woman, was normal except for her
experiencing occasional pain due to the presence of stone in her gall bladder. She
was advised to undergo an operation for its removal. The results in the
examinations she underwent indicate that she was fit for the operation. She and
her husband Rogelio met Dr. Hosaka, one of the defendants, who advised that
she should undergo cholecystectomy. Dr. Hosaka assured them that he will get a
good anaesthesiologist. At 7:30 a.m. on the day of the operation at Delos Santos
Medical Center, Herminda Cruz, Erlindas sister-in-law and the dean of the
College of Nursing in Capitol Medical Center, was there to provide moral support.
Dr. Perfecta Gutierrez was to administer the anaesthesia. Dr. Hosaka arrived only
at 12:15 p. m. Herminda saw Dr. Gutierrez intubating the patient, and heard the
latter say Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O, lumalaki
ang tiyan. Herminda saw bluish discoloration of the nailbeds of the patient. She
heard Dr. Hosaka issue an order for someone to call Dr. Calderon. The doctor
arrived and placed the patient in trendelenburg position, wherein the head of the
patient is positioned lower than the feet, which indicates a decrease of blood
supply in the brain. Herminda knew and told Rogelio that something wrong was
happening. Dr. Calderon was able to intubate the patient. Erlinda was taken to
the ICU and became comatose.
Rogelio filed a civil case for damages. The trial court ruled in his favor, finding
Dr. Gutierrez, Dr. Hosaka, and the hospital, guilty of negligence, but the Court of
Appeals reversed the decision. Hence, petitioner filed a Motion for
Reconsideration, which the Court of Appeals denied for having been filed beyond
the reglementary period. However, it was found that the notice of the decision
was never sent to the petitioners counsel. Rather, it was sent to the petitioner,
addressing him as Atty. Rogelio Ramos, as if he was the legal counsel. The
petitioner filed the instant petition for certiorari. On the procedural issue, the
Supreme Court rules that since the notice did not reach the petitioners then legal
counsel, the motion was filed on time.
Issue:
Whether a surgeon, an anaesthesiologist, and a hospital, should be made liable
for the unfortunate comatose condition of a patient scheduled for
cholecystectomy
Held:
Res Ipsa Loquitor
Res ipsa loquitur is a Latin phrase which literally means "the thing or the
transaction speaks for itself." The phrase "res ipsa loquitur'' is a maxim for the
rule that the fact of the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a presumption of negligence, or
make out a plaintiff's prima facie case, and present a question of fact for
defendant to meet with an explanation. Where the thing which caused the injury
complained of is shown to be under the management of the defendant or his
servants and the accident is such as in ordinary course of things does not happen
if those who have its management or control use proper care, it affords
reasonable evidence, in the absence of explanation by the defendant, that the
accident arose from or was caused by the defendant's want of care. It is grounded
in the superior logic of ordinary human experience and on the basis of such
experience or common knowledge, negligence may be deduced from the mere
occurrence of the accident itself. However, much has been said thatres ipsa
loquitur is not a rule of substantive law and, as such, does not create or constitute
an independent or separate ground of liability. Mere invocation and application
of the doctrine does not dispense with the requirement of proof of negligence. It
is simply a step in the process of such proof, permitting the plaintiff to present
along with the proof of the accident, enough of the attending circumstances to
invoke the doctrine, creating an inference or presumption of negligence, and to
thereby place on the defendant the burden of going forward with the proof. Still,
before resort to the doctrine may be allowed, the following requisites must be
satisfactorily shown.
(1) The accident is of a kind which ordinarily does not occur in the absence of
someone's negligence;
(2) It is caused by an instrumentality within the exclusive control of the
defendant or defendants; and
(3) The possibility of contributing conduct which would make the plaintiff
responsible is eliminated.
Medical malpractice cases do not escape the application of this doctrine.
Thus, res ipsa loquitur has been applied when the circumstances attendant upon
the harm are themselves of such a character as to justify an inference of
negligence as the cause of that harm. Although generally, expert medical
testimony is relied upon in malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard medical procedure, when
the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert
medical testimony is dispensed with because the injury itself provides the proof
of negligence. Hence, in cases where the res ipsa loquitur is applicable, the court
is permitted to find a physician negligent upon proper proof of injury to the
patient, without the aid of expert testimony, where the court from its fund of
common knowledge can determine the proper standard of care. When the
doctrine is appropriate, all that the patient must do is prove a nexus between the
particular act or omission complained of and the injury sustained while under the
custody and management of the defendant without need to produce expert
medical testimony to establish the standard of care. Resort to res ipsa loquitur is
allowed because there is no other way, under usual and ordinary conditions, by
which the patient can obtain redress for injury suffered by him.
Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a
rule to be cautiously applied, depending upon the circumstances of each case. A
distinction must be made between the failure to secure results, and the
occurrence of something more unusual and not ordinarily found if the service or
treatment rendered followed the usual procedure of those skilled in that
particular practice. The real question, therefore, is whether or not in the process
of the operation any extraordinary incident or unusual event outside of the
routine performance occurred which is beyond the regular scope of customary
professional activity in such operations, which, if unexplained would themselves
reasonably speak to the average man as the negligent cause or causes of the
untoward consequence.
We find the doctrine of res ipsa loquitur appropriate in the case at bar. Erlinda
submitted herself for cholecystectomy and expected a routine general surgery to
be performed on her gall bladder. On that fateful day she delivered her person
over to the care, custody and control of private respondents who exercised
complete and exclusive control over her. At the time of submission, Erlinda was
neurologically sound and, except for a few minor discomforts, was likewise
physically fit in mind and body. However, during the administration of
anesthesia and prior to the performance of cholecystectomy she suffered
irreparable damage to her brain. Thus, without undergoing surgery, she went out
of the operating room already decerebrate and totally incapacitated. Obviously,
brain damage, which Erlinda sustained, is an injury which does not normally
occur in the process of a gall bladder operation. In fact, this kind of situation does
not in the absence of negligence of someone in the administration of anesthesia
and in the use of endotracheal tube. Furthermore, the instruments used in the
administration of anesthesia, including the endotracheal tube, were all under the
exclusive control of private respondents, who are the physicians-in-charge.
Likewise, petitioner Erlinda could not have been guilty of contributory negligence
because she was under the influence of anesthetics which rendered her
unconscious.
Negligence of the Anaesthesiologist
The pre-operative evaluation of a patient prior to the administration of
anesthesia is universally observed to lessen the possibility of anesthetic accidents.
Respondent Dra. Gutierrez' act of seeing her patient for the first time only an
hour before the scheduled operative procedure was, therefore, an act of
exceptional negligence and professional irresponsibility. Her failure to follow this
medical procedure is, therefore, a clearindicia of her negligence. Erlinda's case
was elective and this was known to respondent Dra. Gutierrez. Thus, she had all
the time to make a thorough evaluation of Erlinda's case prior to the operation
and prepare her for anesthesia. However, she never saw the patient at the
bedside. She herself admitted that she had seen petitioner only in the operating
room, and only on the actual date of the cholecystectomy. She negligently failed
to take advantage of this important opportunity. As such, her attempt to
exculpate herself must fail.
Opinion of Expert Witness
An anesthetic accident caused by a rare drug-induced bronchospasm properly
falls within the fields of anesthesia, internal medicine-allergy, and clinical
pharmacology. The resulting anoxic encephalopathy belongs to the field of
neurology. While admittedly, many bronchospastic-mediated pulmonary diseases
are within the expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic
drug-induced, allergic mediated bronchospasm alleged in this case is within the
disciplines of anesthesiology, allergology and pharmacology. On the basis of the
foregoing transcript, in which the pulmonologist himself admitted that he could
not testify about the drug with medical authority, it is clear that the appellate
court erred in giving weight to Dr. Jamora's testimony as an expert in the
administration of Thiopental Sodium. Generally, to qualify as an expert witness,
one must have acquired special knowledge of the subject matter about which he
or she is to testify, either by the study of recognized authorities on the subject or
by practical experience. Clearly, Dr. Jamora does not qualify as an expert witness
based on the above standard since he lacks the necessary knowledge, skill, and
training in the field of anesthesiology. Oddly, apart from submitting testimony
from a specialist in the wrong field, private respondents' intentionally avoided
providing testimony by competent and independent experts in the proper areas.
Proximate Cause
Proximate cause has been defined as that which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces injury, and
without which the result would not have occurred. An injury or damage is
proximately caused by an act or a failure to act, whenever it appears from the
evidence in the case, that the act or omission played a substantial part in bringing
about or actually causing the injury or damage; and that the injury or damage
was either a direct result or a reasonably probable consequence of the act or
omission. Instead of the intended endotracheal intubation what actually took
place was an esophageal intubation. During intubation, such distention indicates
that air has entered the gastrointestinal tract through the esophagus instead of
the lungs through the trachea. Entry into the esophagus would certainly cause
some delay in oxygen delivery into the lungs as the tube which carries oxygen is
in the wrong place. That abdominal distention had been observed during the first
intubation suggests that the length of time utilized in inserting the endotracheal
tube (up to the time the tube was withdrawn for the second attempt) was fairly
significant. Due to the delay in the delivery of oxygen in her lungs Erlinda showed
signs of cyanosis.
Responsibility of the Surgeon
As the so-called "captain of the ship," it is the surgeon's responsibility to see to it
that those under him perform their task in the proper manner. Respondent Dr.
Hosaka's negligence can be found in his failure to exercise the proper authority in
not determining if his anesthesiologist observed proper anesthesia protocols. In
fact, no evidence on record exists to show that respondent Dr. Hosaka verified if
respondent Dra. Gutierrez properly intubated the patient. Furthermore, it does
not escape us that respondent Dr. Hosaka had scheduled another procedure in a
different hospital at the same time as Erlinda's cholecystectomy, and was in fact
over three hours late for the latter's operation. Because of this, he had little or no
time to confer with his anesthesiologist regarding the anesthesia delivery. This
indicates that he was remiss in his professional duties towards his patient. Thus,
he shares equal responsibility for the events which resulted in Erlinda's
condition.
Responsibility of the Hospital
Hospitals hire, fire and exercise real control over their attending and visiting
"consultant" staff. While "consultants" are not, technically employees, a point
which respondent hospital asserts in denying all responsibility for the patient's
condition, the control exercised, the hiring, and the right to terminate consultants
all fulfill the important hallmarks of an employer-employee relationship, with the
exception of the payment of wages. In assessing whether such a relationship in
fact exists, the control test is determining. Accordingly, on the basis of the
foregoing, we rule that for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect exists between
hospitals and their attending and visiting physicians.
The basis for holding an employer solidarily responsible for the negligence of its
employee is found in Article 2180 of the Civil Code which considers a person
accountable not only for his own acts but also for those of others based on the
former's responsibility under a relationship of patria potestas. Such
responsibility ceases when the persons or entity concerned prove that they have
observed the diligence of a good father of the family to prevent damage. In the
instant case, respondent hospital, apart from a general denial of its responsibility
over respondent physicians, failed to adduce evidence showing that it exercised
the diligence of a good father of a family in the hiring and supervision of the
latter. It failed to adduce evidence with regard to the degree of supervision which
it exercised over its physicians. In neglecting to offer such proof, or proof of a
similar nature, respondent hospital thereby failed to discharge its burden under
the last paragraph of Article 2180. Having failed to do this, respondent hospital is
consequently solidarily responsible with its physicians for Erlinda's condition.
Damages
At current levels, the P8000/monthly amount established by the trial court at the
time of its decision would be grossly inadequate to cover the actual costs of
home-based care for a comatose individual. The calculated amount was not even
arrived at by looking at the actual cost of proper hospice care for the patient.
What it reflected were the actual expenses incurred and proved by the petitioners
after they were forced to bring home the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a hospital or be transferred
to a hospice specializing in the care of the chronically ill for the purpose of
providing a proper milieu adequate to meet minimum standards of care. Given
these considerations, the amount of actual damages recoverable in suits arising
from negligence should at least reflect the correct minimum cost of proper care,
not the cost of the care the family is usually compelled to undertake at home to
avoid bankruptcy.
Our rules on actual or compensatory damages generally assume that at the time
of litigation, the injury suffered as a consequence of an act of negligence has been
completed and that the cost can be liquidated. However, these provisions neglect
to take into account those situations, as in this case, where the resulting injury
might be continuing and possible future complications directly arising from the
injury, while certain to occur, are difficult to predict. Temperate damages can and
should be awarded on top of actual or compensatory damages in instances where
the injury is chronic and continuing. And because of the unique nature of such
cases, no incompatibility arises when both actual and temperate damages are
provided for. The reason is that these damages cover two distinct phases. As it
would not be equitable - and certainly not in the best interests of the
administration of justice - for the victim in such cases to constantly come before
the courts and invoke their aid in seeking adjustments to the compensatory
damages previously awarded - temperate damages are appropriate. The amount
given as temperate damages, though to a certain extent speculative, should take
into account the cost of proper care. In the instant case, petitioners were able to
provide only home-based nursing care for a comatose patient who has remained
in that condition for over a decade. Having premised our award for compensatory
damages on the amount provided by petitioners at the onset of litigation, it would
be now much more in step with the interests of justice if the value awarded for
temperate damages would allow petitioners to provide optimal care for their
loved one in a facility which generally specializes in such care. They should not be
compelled by dire circumstances to provide substandard care at home without
the aid of professionals, for anything less would be grossly inadequate. Under the
circumstances, an award of P1,500,000.00 in temperate damages would
therefore be reasonable.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She
has been in a comatose state for over fourteen years now. The burden of care has
so far been heroically shouldered by her husband and children, who, in the
intervening years have been deprived of the love of a wife and a mother.
Meanwhile, the actual physical, emotional and financial cost of the care of
petitioner would be virtually impossible to quantify. Even the temperate damages
herein awarded would be inadequate if petitioner's condition remains unchanged
for the next ten years.

The husband and the children, all petitioners in this case,
will have to live with the day to day uncertainty of the patient's illness, knowing
any hope of recovery is close to nil. They have fashioned their daily lives around
the nursing care of petitioner, altering their long term goals to take into account
their life with a comatose patient. They, not the respondents, are charged with
the moral responsibility of the care of the victim. The family's moral injury and
suffering in this case is clearly a real one. For the foregoing reasons, an award of
P2,000,000.00 in moral damages would be appropriate.
Finally, by way of example, exemplary damages in the amount of P100,000.00
are hereby awarded. Considering the length and nature of the instant suit we are
of the opinion that attorney's fees valued at P100,000.00 are likewise proper.
WHEREFORE, the decision and resolution of the appellate court appealed from
are hereby modified so as to award in favor of petitioners, and solidarily against
private respondents the following: 1) P1,352,000.00 as actual damages computed
as of the date of promulgation of this decision plus a monthly payment of
P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate
damages; 4) P100,000.00 each as exemplary damages and attorney's fees; and,
5) the costs of the suit.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 167366 September 26, 2012
DR. PEDRO DENNIS CERENO, and DR. SANTOS ZAFE, Petitioners,
vs.
COURT OF APPEALS, SPOUSES DIOGENES S. OLAVERE and FE R.
SERRANO, Respondents.
D E C I S I O N
PEREZ, J.:
Before the Court is a Petition for Review on Certiorari
1
under Rule 45 of the
Rules of Court seeking the annulment and setting aside of the 21 February 2005
decision
2
of the Court of Appeals (CA) in CA-G.R. CV No. 65800. In the assailed
decision, the CA affirmed in toto the decision of the Regional Trial Court (R TC),
Branch 22, Nag a City finding herein petitioners Dr. Pedro Dennis Cereno (Dr.
Cereno) and Dr. Santos Zafe (Dr. Zafe) liable for damages.
Culled from the records are the following antecedent facts:
At about 9:15 in the evening of 16 September 1995, Raymond S. Olavere
(Raymond), a victim of a stabbing incident, was rushed to the emergency room of
the Bicol Regional Medical Center (BRMC). There, Raymond was attended to by
Nurse Arlene Balares (Nurse Balares) and Dr. Ruel Levy Realuyo (Dr. Realuyo)
the emergency room resident physician.
Subsequently, the parents of Raymondthe spouses Deogenes Olavere
(Deogenes) and Fe R. Serranoarrived at the BRMC. They were accompanied
by one Andrew Olavere, the uncle of Raymond.
After extending initial medical treatment to Raymond, Dr. Realuyo recommended
that the patient undergo "emergency exploratory laparotomy." Dr. Realuyo then
requested the parents of Raymond to procure 500 cc of type "O" blood needed
for the operation. Complying with the request, Deogenes and Andrew Olavere
went to the Philippine National Red Cross to secure the required blood.
At 10:30 P.M., Raymond was wheeled inside the operating room. During that
time, the hospital surgeons, Drs. Zafe and Cereno, were busy operating on
gunshot victim Charles Maluluy-on. Assisting them in the said operation was Dr.
Rosalina Tatad (Dr. Tatad), who was the only senior anesthesiologist on duty at
BRMC that night. Dr. Tatad also happened to be the head of Anesthesiology
Department of the BRMC.
Just before the operation on Maluluy-on was finished, another emergency case
involving Lilia Aguila, a woman who was giving birth to triplets, was brought to
the operating room.
At 10:59 P.M., the operation on Charles Maluluy-on was finished. By that time,
however, Dr. Tatad was already working with the obstetricians who will perform
surgery on Lilia Aguila. There being no other available anesthesiologist to assist
them, Drs. Zafe and Cereno decided to defer the operation on Raymond.
Drs. Zafe and Cereno, in the meantime, proceeded to examine Raymond and
they found that the latters blood pressure was normal and "nothing in him was
significant."
3
Dr. Cereno reported that based on the xray result he interpreted, the
fluid inside the thoracic cavity of Raymond was minimal at around 200-300 cc.
At 11:15 P.M., Deogenes and Andrew Olavere returned to the BRMC with a bag
containing the requested 500 cc type "O" blood. They handed over the bag of
blood to Dr. Realuyo.
After Dr. Tatad finished her work with the Lilia Aguila operation, petitioners
immediately started their operation on Raymond at around 12:15 A.M. of 17
September 1995. Upon opening of Raymonds thoracic cavity, they found that
3,200 cc of blood was stocked therein. The blood was evacuated and petitioners
found a puncture at the inferior pole of the left lung.
In his testimony, Dr. Cereno stated that considering the loss of blood suffered by
Raymond, he did not immediately transfuse blood because he had to control the
bleeders first.
4

Blood was finally transfused on Raymond at 1:40 A.M. At 1:45 A.M., while the
operation was on-going, Raymond suffered a cardiac arrest. The operation
ended at 1:50 A.M. and Raymond was pronounced dead at 2:30 A.M.
Raymonds death certificate
5
indicated that the immediate cause of death was
"hypovolemic shock" or the cessation of the functions of the organs of the body
due to loss of blood.
6

Claiming that there was negligence on the part of those who attended to their
son, the parents of Raymond, on 25 October 1995, filed before the RTC, Branch
22, Naga City a complaint for damages
7
against Nurse Balares, Dr. Realuyo and
attending surgeons Dr. Cereno and Dr. Zafe.
During trial, the parents of Raymond testified on their own behalf. They also
presented the testimonies of Andrew Olavere and one Loira Oira, the aunt of
Raymond. On the other hand, Dr. Cereno, Dr. Realuyo, Nurse Balares and
Security Guard Diego Reposo testified for the defense. On rebuttal, the parents
of Raymond presented Dr. Tatad, among others.
On 15 October 1999, the trial court rendered a decision
8
the dispositive portion of
which reads:
WHEREFORE, premises considered, this Court hereby renders judgment:
1. Dismissing the case against Dr. Ruel Levy Realuyo and Arlene Balares
for lack of merit;
2. Ordering defendants Dr. Santos Zafe and Dr. Dennis Cereno to pay the
heirs of Raymond Olavere, jointly and severally the following amounts:
1. P 50,000.00 for the death of the victim;
2. P 150,000.00 as moral damages;
3. P 100,000.00 as exemplary damages;
4. P 30,000.00 for attorneys fees; and
5. Cost of suit.
9

x x x x.
The trial court found petitioners negligent in not immediately conducting surgery
on Raymond. It noted that petitioners have already finished operating on Charles
Maluluy-on as early as 10:30 in the evening, and yet they only started the
operation on Raymond at around 12:15 early morning of the following day. The
trial court held that had the surgery been performed promptly, Raymond would
not have lost so much blood and, therefore, could have been saved.
10

The trial court also held that the non-availability of Dr. Tatad after the operation
on Maluluy-on was not a sufficient excuse for the petitioners to not immediately
operate on Raymond. It called attention to the testimony of Dr. Tatad herself,
which disclosed the possibility of calling a standby anesthesiologist in that
situation. The trial court opined that the petitioners could have just requested for
the standby anesthesiologist from Dr. Tatad, but they did not.
Lastly, the trial court faulted petitioners for the delay in the transfusion of blood
on Raymond.
On appeal, the CA in a decision dated 21 February 2005 affirmed in toto the
judgment rendered by the RTC finding herein petitioners guilty of gross
negligence in the performance of their duties and awarding damages to private
respondents.
Hence, this petition for review on certiorari under Rule 45 of the Rules of Court
assailing the CA decision on the following grounds:
1. THAT THE CA ERRED IN RULING THAT PETITIONERS WERE
GROSSLY NEGLIGENT IN THE PERFORMANCE OF THEIR DUTIES;
2. THAT THE CA ERRED IN NOT CONSIDERING THE BICOL
REGIONAL MEDICAL CENTER AS AN INDISPENSABLE PARTY AND
SUBSIDIARILY LIABLE SHOULD PETITIONERS BE FOUND LIABLE
FOR DAMAGES; and
3. THAT THE CA ERRED IN NOT FINDING THE AWARD OF MORAL
AND EXEMPLARY DAMAGES AS WELL AS ATTORNEYS FEES
EXORBITANT OR EXCESSIVE.
We grant the petition
It is well-settled that under Rule 45 of the Rules of Court, only questions of law
may be raised. The reason behind this is that this Court is not a trier of facts and
will not re-examine and re-evaluate the evidence on record.
11
Factual findings of
the CA, affirming that of the trial court, are therefore generally final and
conclusive on this Court. This rule is subject to the following exceptions: (1) the
conclusion is grounded on speculations, surmises or conjectures; (2) the
inference is manifestly mistaken, absurd or impossible; (3) there is grave abuse
of discretion; (4) the judgment is based on a misapprehension of facts; (5) the
findings of fact are conflicting; (6) there is no citation of specific evidence on
which the factual findings are based; (7) the findings of absence of fact are
contradicted by the presence of evidence on record; (8) the findings of the CA
are contrary to those of the trial court; (9) the CA manifestly overlooked certain
relevant and undisputed facts that, if properly considered, would justify a different
conclusion; (10) the findings of the CA are beyond the issues of the case; and
(11) such findings are contrary to the admissions of both parties.
12
In this case,
We find exceptions (1) and (4) to be applicable.
The type of lawsuit which has been called medical malpractice or, more
appropriately, medical negligence, is that type of claim which a victim has
available to him or her to redress a wrong committed by a medical professional
which has caused bodily harm. In order to successfully pursue such a claim, a
patient must prove that a health care provider, in most cases a physician,
either failed to do something which a reasonably prudent health care
provider would have done, or that he or she did something that a
reasonably prudent provider would not have done; and that the failure or
action caused injury to the patient.
13
Stated otherwise, the complainant must
prove: (1) that the health care provider, either by his act or omission, had been
negligent, and (2) that such act or omission proximately caused the injury
complained of.
The best way to prove these is through the opinions of expert witnesses
belonging in the same neighborhood and in the same general line of practice as
defendant physician or surgeon. The deference of courts to the expert opinion of
qualified physicians stems from the formers realization that the latter possess
unusual technical skills which laymen in most instances are incapable of
intelligently evaluating, hence, the indispensability of expert testimonies.
14

Guided by the foregoing standards, We dissect the issues at hand.
Petitioners Not Negligent
The trial court first imputed negligence on the part of the petitioners by their
failure to perform the operation on Raymond immediately after finishing the
Maluluy-on operation. It rejected as an excuse the nonavailability of Dr. Tatad.
The trial court relied on the testimony of Dr. Tatad about a "BRMC protocol" that
introduces the possibility that a standby anesthesiologist could have been called
upon. The pertinent portions of the testimony of Dr. Tatad provides:
Q: Aside from you and Dr. Rebancos, who was the standby anesthesiologist?
A: We have a protocol at the Bicol Medical Center to have a consultant who is on
call.
Q: How many of them?
A: One.
Q: Who is she?
A: Dra. Flores.
Q: What is the first name?
A: Rosalina Flores.
Q: Is she residing in Naga City?
A: In Camaligan.
Q: She is on call anytime when there is an emergency case to be attended to in
the Bicol Medical Center?
A: Yes sir.
15

Dr. Tatad further testified:
Q: Alright (sic), considering that you said you could not attend to Raymond
Olavere because another patient was coming in the person of Lilia Aguila, did
you not suggest to Dr. Cereno to call the standby anesthesiologist?
A: They are not ones to do that. They have no right to call for the standby
anesthesiologist.
Q: Then, who should call for the standby anesthesiologist?
A: It is me if the surgeon requested.
Q: But in this case, the surgeon did not request you?
A: No. It is their prerogative.
Q: I just want to know that in this case the surgeon did not request you to call for
the standby anesthesiologist?
A: No sir.
16

From there, the trial court concluded that it was the duty of the petitioners to
request Dr. Tatad to call on Dr. Rosalina Flores, the standby anesthesiologist.
Since petitioners failed to do so, their inability to promptly perform the operation
on Raymond becomes negligence on their part.
This Court does not agree with the aforesaid conclusion.
First. There is nothing in the testimony of Dr. Tatad, or in any evidence on the
record for that matter, which shows that the petitioners were aware of the "BRMC
protocol" that the hospital keeps a standby anesthesiologist available on call.
Indeed, other than the testimony of Dr. Tatad, there is no evidence that proves
that any such "BRMC protocol" is being practiced by the hospitals surgeons at
all.
Evidence to the effect that petitioners knew of the "BRMC protocol" is essential,
especially in view of the contrary assertion of the petitioners that the matter of
assigning anesthesiologists rests within the full discretion of the BRMC
Anesthesiology Department. Without any prior knowledge of the "BRMC
protocol," We find that it is quite reasonable for the petitioners to assume that
matters regarding the administration of anesthesia and the assignment of
anesthesiologists are concerns of the Anesthesiology Department, while matters
pertaining to the surgery itself fall under the concern of the surgeons. Certainly,
We cannot hold petitioners accountable for not complying with something that
they, in the first place, do not know.
Second. Even assuming ex gratia argumenti that there is such "BRMC protocol"
and that petitioners knew about it, We find that their failure to request for the
assistance of the standby anesthesiologist to be reasonable when taken in the
proper context. There is simply no competent evidence to the contrary.
From the testimony of Dr. Tatad herself, it is clear that the matter of requesting
for a standby anaesthesiologist is not within the full discretion of petitioners. The
"BRMC protocol" described in the testimony requires the petitioners to course
such request to Dr. Tatad who, as head of the Department of Anesthesiology,
has the final say of calling the standby anesthesiologist.
As revealed by the facts, however, after the Maluluy-on operation, Dr. Tatad
was already assisting in the Lilia Aguila operation. Drs. Zafe and Cereno then
proceeded to examine Raymond and they found that the latters blood pressure
was normal and "nothing in him was significant."
17
Dr. Cereno even concluded
that based on the x-ray result he interpreted, the fluid inside the thoracic cavity of
Raymond was minimal at around 200-300 cc. Such findings of Drs. Cereno and
Zafe were never challenged and were unrebutted.
Given that Dr. Tatad was already engaged in another urgent operation and that
Raymond was not showing any symptom of suffering from major blood loss
requiring an immediate operation, We find it reasonable that petitioners decided
to wait for Dr. Tatad to finish her surgery and not to call the standby
anesthesiologist anymore. There is, after all, no evidence that shows that a
prudent surgeon faced with similar circumstances would decide otherwise.
Here, there were no expert witnesses presented to testify that the course of
action taken by petitioners were not in accord with those adopted by other
reasonable surgeons in similar situations. Neither was there any testimony given,
except that of Dr. Tatads, on which it may be inferred that petitioners failed to
exercise the standard of care, diligence, learning and skill expected from
practitioners of their profession. Dr. Tatad, however, is an expert neither in the
field of surgery nor of surgical practices and diagnoses. Her expertise is in the
administration of anesthesia and not in the determination of whether surgery
ought or not ought to be performed.
Another ground relied upon by the trial court in holding petitioners negligent was
their failure to immediately transfuse blood on Raymond. Such failure allegedly
led to the eventual death of Raymond through "hypovolemic shock." The trial
court relied on the following testimony of Dr. Tatad:
Q: In this case of Raymond Olavere was blood transfused to him while he was
inside the operating room?
A: The blood arrived at 1:40 a.m. and that was the time when this blood was
hooked to the patient.
x x x x
Q: Prior to the arrival of the blood, you did not request for blood?
A: I requested for blood.
Q: From whom?
A: From the attending physician, Dr. Realuyo.
Q: What time was that?
x x x x
A: 9:30.
x x x x
Q: Had this blood been given to you before the operation you could have
transfused the blood to the patient?
A: Of course, yes.
Q: And the blood was transfused only after the operation?
A: Because that was the time when the blood was given to us.
x x x x
Q: Have you monitored the condition of Raymond Olavere?
A: I monitored the condition during the time when I would administer anesthesia.
Q: What time was that?
A: 11:45 already.
Q: What was the condition of the blood pressure at that time?
A: 60/40 initial.
Q: With that kind of blood pressure the patient must have been in critical
condition?
A: At the time when the blood pressure was 60/40 I again told Dr. Cereno that
blood was already needed.
Q: With that condition, Doctor, that the patient had 60/40 blood pressure you did
not decide on transfusing blood to him?
A: I was asking for blood but there was no blood available.
Q: From whom did you ask?
A: From the surgeon. According to Dr. Zafe there was only 500 cc but still for
cross-matching.
18

From the aforesaid testimony, the trial court ruled that there was negligence on
the part of petitioners for their failure to have the blood ready for transfusion. It
was alleged that at 11:15 P.M., the 500 cc of blood was given to Dr. Realuyo by
Raymonds parents. At 11:45 P.M., when Dr. Tatad was asking for the blood, 30
minutes had passed. Yet, the blood was not ready for transfusion as it was still
being cross-matched.
19
It took another two hours before blood was finally
transfused to Raymond at 1:40 A.M. of 17 September 1995.
Again, such is a mistaken conclusion.
First, the alleged delay in the cross-matching of the blood, if there was any,
cannot be attributed as the fault of the petitioners. The petitioners were never
shown to be responsible for such delay. It is highly unreasonable and the height
of injustice if petitioners were to be sanctioned for lapses in procedure that does
not fall within their duties and beyond their control.
Second, Dr. Cereno, in his unchallenged testimony, aptly explained the apparent
delay in the transfusion of blood on Raymond before and during the operation.
Before the operation, Dr. Cereno explained that the reason why no blood
transfusion was made on Raymond was because they did not then see the need
to administer such transfusion, viz:
Q: Now, you stated in your affidavit that prior to the operation you were informed
that there was 500 cc of blood available and was still to be cross-matched. What
time was that when you were informed that 500 cc of blood was due for
crossmatching?
A: I am not sure of the time.
Q: But certainly, you learned of that fact that there was 500 cc of blood, which
was due for crossmatching immediately prior to the operation?
A: Yes, sir.
Q: And the operation was done at 12:15 of September 17?
A: Yes, sir.
Q: And that was the reason why you could not use the blood because it was
being crossmatched?
A: No, sir. That was done only for a few minutes. We did not transfuse at that
time because there was no need.There is a necessity to transfuse blood
when we saw there is gross bleeding inside the body.
20
(Emphasis supplied)
During the operation, on the other hand, Dr. Cereno was already able to discover
that 3,200 cc of blood was stocked in the thoracic cavity of Raymond due to the
puncture in the latters left lung. Even then, however, immediate blood
transfusion was not feasible because:
Q: Now considering the loss of blood suffered by Raymund Olavere, why did you
not immediately transfuse blood to the patient and you waited for 45 minutes to
elapse before transfusing the blood?
A: I did not transfuse blood because I had to control the bleeders. If you will
transfuse blood just the same the blood that you transfuse will be lost.
After evacuation of blood and there is no more bleeding!
Q: It took you 45 minutes to evacuate the blood?
A: The evacuation did not take 45 minutes.
Q: So what was the cause of the delay why you only transfuse blood after 45
minutes?
A: We have to look for some other lesions. It does not mean that when you
slice the chest you will see the lesions already.
21

(Emphasis supplied)
Again, the foregoing testimonies of Dr. Cereno went unchallenged or unrebutted.
The parents of Raymond were not able to present any expert witness to dispute
the course of action taken by the petitioners.
Causation Not Proven
In medical negligence cases, it is settled that the complainant has the burden of
establishing breach of duty on the part of the doctors or surgeons. It must be
proven that such breach of duty has a causal connection to the resulting death of
the patient.
22
A verdict in malpractice action cannot be based on speculation or
conjecture. Causation must be proven within a reasonable medical probability
based upon competent expert testimony.
The parents of Raymond failed in this respect. Aside from their failure to prove
negligence on the part of the petitioners, they also failed to prove that it was
petitioners fault that caused the injury. Their cause stands on the mere
assumption that Raymonds life would have been saved had petitioner surgeons
immediately operated on him; had the blood been cross-matched immediately
and had the blood been transfused immediately. There was, however, no proof
presented that Raymonds life would have been saved had those things been
done. Those are mere assumptions and cannot guarantee their desired result.
Such cannot be made basis of a decision in this case, especially considering that
the name, reputation and career of petitioners are at stake.
The Court understands the parents grief over their sons death.1wphi1 That
notwithstanding, it cannot hold petitioners liable. It was noted that Raymond, who
was a victim of a stabbing incident, had multiple wounds when brought to the
hospital. Upon opening of his thoracic cavity, it was discovered that there was
gross bleeding inside the body. Thus, the need for petitioners to control first what
was causing the bleeding. Despite the situation that evening i.e. numerous
patients being brought to the hospital for emergency treatment considering that it
was the height of the Peafrancia Fiesta, it was evident that petitioners exerted
earnest efforts to save the life of Raymond. It was just unfortunate that the loss of
his life was not prevented.
In the case of Dr. Cruz v. CA, it was held that "[d]octors are protected by a
special law. They are not guarantors of care. They do not even warrant a good
result. They are not insurers against mishaps or unusual consequences.
Furthermore, they are not liable for honest mistake of judgment!"
23

This Court affirms the ruling of the CA that the BRMC is not an indispensible
party. The core issue as agreed upon by the parties and stated in the pre-trial
order is whether petitioners were negligent in the performance of their duties. It
pertains to acts/omissions of petitioners for which they could be held liable. The
cause of action against petitioners may be prosecuted fully and the determination
of their liability may be arrived at without impleading the hospital where they are
employed. As such, the BRMC cannot be considered an indispensible party
without whom no final determination can be had of an action.
24

IN THE LIGHT OF THE FOREGOING, the instant Petition for Review on
Certiorari is hereby GRANTED. The Court of Appeals decision dated 21
February 2005 in CA-G.R. CV No. 65800 is hereby REVERSED and SET
ASIDE. No costs.
SO ORDERED.
Republic of the Philippines
Supreme Court
Manila

THIRD DIVISION


DR. EMMANUEL JARCIA,
JR.and DR. MARILOU BASTAN,
Petitioners,




G.R. No. 187926

Present:

CARPIO,
*
J.,
PERALTA,
**
Acting Chairperson,
- versus -





PEOPLE OF THEPHILIPPINES,
Respondent.
ABAD,
PEREZ,
***
and
MENDOZA, JJ.


Promulgated:

February 15, 2012

x --------------------------------------------------------------------------------------- x

D E C I S I O N

MENDOZA, J.:


Even early on, patients have consigned their lives to the skill of
their doctors. Time and again, it can be said that the most important goal
of the medical profession is the preservation of life and health of the
people. Corollarily, when a physician departs from his sacred duty and
endangers instead the life of his patient, he must be made liable for the
resulting injury. This Court, as this case would show, cannot and will not
let the act go unpunished.
[1]


This is a petition for review under Rule 45 of the Rules of Court challenging the
August 29, 2008 Decision
[2]
of the Court of Appeals (CA), and its May 19, 2009
Resolution
[3]
in CA-G.R. CR No. 29559, dismissing the appeal and affirming in toto the
June 14, 2005 Decision
[4]
of the Regional Trial Court, Branch 43, Manila (RTC), finding
the accused guilty beyond reasonable doubt of simple imprudence resulting to serious
physical injuries.


THE FACTS


Belinda Santiago (Mrs. Santiago) lodged a complaint with the National Bureau of
Investigation (NBI) against the petitioners, Dr. Emmanuel Jarcia, Jr. (Dr. Jarcia) and Dr.
Marilou Bastan (Dr. Bastan), for their alleged neglect of professional duty which caused
her son, Roy Alfonso Santiago (Roy Jr.), to suffer serious physical injuries. Upon
investigation, the NBI found that Roy Jr. was hit by a taxicab; that he was rushed to the
Manila Doctors Hospital for an emergency medical treatment; that an X-ray of the
victims ankle was ordered; that the X-ray result showed no fracture as read by Dr.
Jarcia; that Dr. Bastan entered the emergency room (ER) and, after conducting her own
examination of the victim, informed Mrs. Santiago that since it was only the ankle that
was hit, there was no need to examine the upper leg; that eleven (11) days later, Roy Jr.
developed fever, swelling of the right leg and misalignment of the right foot; that Mrs.
Santiago brought him back to the hospital; and that the X-ray revealed a right mid-tibial
fracture and a linear hairline fracture in the shaft of the bone.

The NBI indorsed the matter to the Office of the City Prosecutor of Manila for
preliminary investigation. Probable cause was found and a criminal case for reckless
imprudence resulting to serious physical injuries, was filed against Dr. Jarcia, Dr. Bastan
and Dr. Pamittan,
[5]
before the RTC, docketed as Criminal Case No. 01-196646.

On June 14, 2005, the RTC found the petitioners guilty beyond reasonable doubt
of the crime of Simple Imprudence Resulting to Serious Physical Injuries. The decretal
portion of the RTC decision reads:

WHEREFORE, premises considered, the Court finds
accused DR. EMMANUEL JARCIA, JR. and DR. MARILOU
BASTAN GUILTY beyond reasonable doubt of the crime of SIMPLE
IMPRUDENCE RESULTING TO SERIOUS PHYSICAL INJURIES
and are hereby sentenced to suffer the penalty of ONE (1) MONTH
and ONE (1) DAY to TWO (2) MONTHS and to indemnify MRS.
BELINDA SANTIAGO the amount of !3,850.00 representing
medical expenses without subsidiary imprisonment in case of
insolvency and to pay the costs.

It appearing that Dr. Pamittan has not been apprehended
nor voluntarily surrendered despite warrant issued for her arrest,
let warrant be issued for her arrest and the case against her be
ARCHIVED, to be reinstated upon her apprehension.

SO ORDERED.
[6]


The RTC explained:

After a thorough and in depth evaluation of the evidence
adduced by the prosecution and the defense, this court finds that
the evidence of the prosecution is the more credible, concrete and
sufficient to create that moral certainty in the mind of the Court
that accused herein [are] criminally responsible. The Court believes
that accused are negligent when both failed to exercise the
necessary and reasonable prudence in ascertaining the extent of
injury of Alfonso Santiago, Jr.


However, the negligence exhibited by the two doctors does
not approximate negligence of a reckless nature but merely
amounts to simple imprudence. Simple imprudence consists in the
lack of precaution displayed in those cases in which the damage
impending to be caused is not the immediate nor the danger clearly
manifest. The elements of simple imprudence are as follows.

1. that there is lack of precaution on the part of the
offender; and

2. that the damage impending to be caused is not
immediate of the danger is not clearly manifest.

Considering all the evidence on record, The Court finds the
accused guilty for simple imprudence resulting to physical
injuries. Under Article 365 of the Revised Penal Code, the penalty
provided for is arresto mayor in its minimum period.
[7]



Dissatisfied, the petitioners appealed to the CA.

As earlier stated, the CA affirmed the RTC decision in toto. The August 29,
2008 Decision of the CA pertinently reads:

This Court holds concurrently and finds the foregoing
circumstances sufficient to sustain a judgment of conviction against
the accused-appellants for the crime of simple imprudence
resulting in serious physical injuries. The elements of imprudence
are: (1) that the offender does or fails to do an act; (2) that the
doing or the failure to do that act is voluntary; (3) that it be without
malice; (4) that material damage results from the imprudence; and
(5) that there is inexcusable lack of precaution on the part of the
offender, taking into consideration his employment or occupation,
degree of intelligence, physical condition, and other circumstances
regarding persons, time and place.

Whether or not Dr. Jarcia and Dr. Bastan had committed an
inexcusable lack of precaution in the treatment of their patient is
to be determined according to the standard of care observed by
other members of the profession in good standing under
similar circumstances, bearing in mind the advanced state of the
profession at the time of treatment or the present state of medical
science. In the case of Leonila Garcia-Rueda v. Pascasio, the
Supreme Court stated that, in accepting a case, a doctor in effect
represents that, having the needed training and skill possessed by
physicians and surgeons practicing in the same field, he will employ
such training, care and skill in the treatment of his patients. He
therefore has a duty to use at least the same level of care that any
other reasonably competent doctor would use to treat a condition
under the same circumstances.

In litigations involving medical negligence, the plaintiff has
the burden of establishing accused-appellants negligence, and for a
reasonable conclusion of negligence, there must be proof of breach
of duty on the part of the physician as well as a causal connection of
such breach and the resulting injury of his patient. The connection
between the negligence and the injury must be a direct and natural
sequence of events, unbroken by intervening efficient causes. In
other words, the negligence must be the proximate cause of the
injury. Negligence, no matter in what it consists, cannot create a
right of action unless it is the proximate cause of the injury
complained of. The proximate cause of an injury is that cause
which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury and without which
the result would not have occurred.

In the case at bench, the accused-appellants questioned the
imputation against them and argued that there is no causal
connection between their failure to diagnose the fracture and the
injury sustained by Roy.

We are not convinced.

The prosecution is however after the cause which prolonged
the pain and suffering of Roy and not on the failure of the accused-
appellants to correctly diagnose the extent of the injury sustained
by Roy.

For a more logical presentation of the discussion, we shall
first consider the applicability of the doctrine of res ipsa loquitur to
the instant case. Res ipsa loquitur is a Latin phrase which literally
means the thing or the transaction speaks for itself. The doctrine
of res ipsa loquitur is simply a recognition of the postulate that, as a
matter of common knowledge and experience, the very nature of
certain types of occurrences may justify an inference of negligence
on the part of the person who controls the instrumentality causing
the injury in the absence of some explanation by the accused-
appellant who is charged with negligence. It is grounded in the
superior logic of ordinary human experience and, on the basis of
such experience or common knowledge, negligence may be deduced
from the mere occurrence of the accident itself. Hence, res ipsa
loquitur is applied in conjunction with the doctrine of common
knowledge.

The specific acts of negligence was narrated by Mrs. Santiago
who accompanied her son during the latters ordeal at the hospital.
She testified as follows:

Fiscal Formoso:

Q: Now, he is an intern did you not consult the
doctors, Dr. Jarcia or Dra. Pamittan to confirm
whether you should go home or not?
A: Dra. Pamittan was inside the cubicle of the
nurses and I asked her, you let us go home and
you dont even clean the wounds of my son.

Q: And what did she [tell] you?
A: They told me they will call a resident
doctor, sir.

x x x x x x x x x

Q: Was there a resident doctor [who] came?
A: Yes, Sir. Dra. Bastan arrived.
Q: Did you tell her what you want on you to be
done?
A: Yes, sir.

Q: What did you [tell] her?
A: I told her, sir, while she was cleaning the
wounds of my son, are you not going to x-ray
up to the knee because my son was
complaining pain from his ankle up to the
middle part of the right leg.

Q: And what did she tell you?
A: According to Dra. Bastan, there is no need to x-
ray because it was the ankle part that was run
over.

Q: What did you do or tell her?
A: I told her, sir, why is it that they did not
examine[x] the whole leg. They just lifted the
pants of my son.

Q: So you mean to say there was no treatment
made at all?
A: None, sir.

x x x x x x x x x

A: I just listened to them, sir. And I just asked if I
will still return my son.

x x x x x x x x x

Q: And you were present when they were called?
A: Yes, sir.

Q: And what was discussed then by Sis. Retoria?
A: When they were there they admitted that they
have mistakes, sir.

Still, before resort to the doctrine may be allowed, the following
requisites must be satisfactorily shown:

1. The accident is of a kind which ordinarily does
not occur in the absence of someones negligence;

2. It is caused by an instrumentality within the
exclusive control of the defendant or defendants;
and

3. The possibility of contributing conduct which
would make the plaintiff responsible is eliminated.

In the above requisites, the fundamental element is the
control of the instrumentality which caused the damage. Such
element of control must be shown to be within the dominion of the
accused-appellants. In order to have the benefit of the rule, a
plaintiff, in addition to proving injury or damage, must show a
situation where it is applicable and must establish that the essential
elements of the doctrine were present in a particular incident. The
early treatment of the leg of Roy would have lessen his suffering if
not entirely relieve him from the fracture. A boy of tender age
whose leg was hit by a vehicle would engender a well-founded belief
that his condition may worsen without proper medical
attention. As junior residents who only practice general surgery
and without specialization with the case consulted before them,
they should have referred the matter to a specialist. This omission
alone constitutes simple imprudence on their part. When Mrs.
Santiago insisted on having another x-ray of her child on the upper
part of his leg, they refused to do so. The mother would not have
asked them if they had no exclusive control or prerogative to
request an x-ray test. Such is a fact because a radiologist would
only conduct the x-ray test upon request of a physician.

The testimony of Mrs. Santiago was corroborated by a bone
specialist Dr. Tacata. He further testified based on his personal
knowledge, and not as an expert, as he examined himself the child
Roy. He testified as follows:

Fiscal Macapagal:

Q: And was that the correct respon[se] to the
medical problem that was presented to Dr.
Jarcia and Dra. Bastan?
A: I would say at that stage, yes. Because they
have presented the patient and the history. At
sabi nila, nadaanan lang po ito. And then,
considering their year of residency they are still
junior residents, and they are not also
orthopedic residents but general surgery
residents, its entirely different thing. Because
if you are an orthopedic resident, I am not
trying to saybut if I were an orthopedic
resident, there would be more precise and
accurate decision compare to a general surgery
resident in so far as involved.

Q: You mean to say there is no supervisor
attending the emergency room?
A: At the emergency room, at the Manila Doctors
Hospital, the supervisor there is a consultant
that usually comes from a family medicine.
They see where a certain patient have to go and
then if they cannot manage it, they refer it to
the consultant on duty. Now at that time, I
dont [know] why they dont.Because at that
time, I think, it is the decision. Since the x-
rays.


Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a patient has been
treated or operated upon with a reasonable degree of skill and care.
However, testimony as to the statements and acts of physicians,
external appearances, and manifest conditions which are
observable by any one may be given by non-expert
witnesses. Hence, in cases where the res ipsa loquitur is
applicable, the court is permitted to find a physician negligent upon
proper proof of injury to the patient, without the aid of expert
testimony, where the court from its fund of common knowledge can
determine the proper standard of care. Where common knowledge
and experience teach that a resulting injury would not have
occurred to the patient if due care had been exercised, an inference
of negligence may be drawn giving rise to an application of the
doctrine of res ipsa loquiturwithout medical evidence, which is
ordinarily required to show not only what occurred but how and
why it occurred. In the case at bench, we give credence to the
testimony of Mrs. Santiago by applying the doctrine of res ipsa
loquitur.

Res ipsa loquitur is not a rigid or ordinary doctrine to be
perfunctorily used but a rule to be cautiously applied, depending
upon the circumstances of each case. It is generally restricted to
situations in malpractice cases where a layman is able to say, as a
matter of common knowledge and observation, that the
consequences of professional care were not as such as would
ordinarily have followed if due care had been exercised. A
distinction must be made between the failure to secure results and
the occurrence of something more unusual and not ordinarily found
if the service or treatment rendered followed the usual procedure of
those skilled in that particular practice. The latter circumstance is
the primordial issue that confronted this Court and we find
application of the doctrine of res ipsa loquitur to be in order.

WHEREFORE, in view of the foregoing, the appeal in this
case is hereby DISMISSED and the assailed decision of the trial
court finding accused-appellants guilty beyond reasonable doubt of
simple imprudence resulting in serious physical injuries is
hereby AFFIRMED in toto.

SO ORDERED.
[8]



The petitioners filed a motion for reconsideration, but it was denied by the CA in
its May 19, 2009 Resolution.

Hence, this petition.

The petitioners pray for the reversal of the decision of both the RTC and the CA
anchored on the following
GROUNDS-

1. IN AFFIRMING ACCUSED-PETITIONERS
CONVICTION, THE COURT OF APPEALS ERRED IN NOT
HOLDING THAT THE ACTUAL, DIRECT, IMMEDIATE, AND
PROXIMATE CAUSE OF THE PHYSICAL INJURY OF THE
PATIENT (FRACTURE OF THE LEG BONE OR TIBIA), WHICH
REQUIRED MEDICAL ATTENDANCE FOR MORE THAN
THIRTY (30) DAYS AND INCAPACITATED HIM FROM
PERFORMING HIS CUSTOMARY DUTY DURING THE SAME
PERIOD OF TIME, WAS THE VEHICULAR ACCIDENT WHERE
THE PATIENTS RIGHT LEG WAS HIT BY A TAXI, NOT THE
FAILURE OF THE ACCUSED-PETITIONERS TO SUBJECT THE
PATIENTS WHOLE LEG TO AN X-RAY EXAMINATION.

2. THE COURT OF APPEALS ERRED IN
DISREGARDING ESTABLISHED FACTS CLEARLY NEGATING
PETITIONERS ALLEGED NEGLIGENCE OR IMPRUDENCE.
SIGNIFICANTLY, THE COURT OF APPEALS UNJUSTIFIABLY
DISREGARDED THE OPINION OF THE PROSECUTIONS
EXPERT WITNESS, DR. CIRILO TACATA, THAT PETITIONERS
WERE NOT GUILTY OF NEGLIGENCE OR IMPRUDENCE
COMPLAINED OF.

3. THE COURT OF APPEALS ERRED IN HOLDING
THAT THE FAILURE OF PETITIONERS TO SUBJECT THE
PATIENTS WHOLE LEG TO AN X-RAY EXAMINATION
PROLONGED THE PAIN AND SUFFERING OF THE PATIENT,
SUCH CONCLUSION BEING UNSUPPORTED BY, AND EVEN
CONTRARY TO, THE EVIDENCE ON RECORD.

4. ASSUMING ARGUENDO THAT THE PATIENT
EXPERIENCED PROLONGED PAIN AND SUFFERING, THE
COURT OF APPEALS ERRED IN NOT HOLDING THAT THE
ALLEGED PAIN AND SUFFERING WERE DUE TO THE
UNJUSTIFIED FAILURE OF THE PATIENTS MOTHER, A
NURSE HERSELF, TO IMMEDIATELY BRING THE PATIENT
BACK TO THE HOSPITAL, AS ADVISED BY THE
PETITIONERS, AFTER HE COMPLAINED OF SEVERE PAIN IN
HIS RIGHT LEG WHEN HE REACHED HOME AFTER HE WAS
SEEN BY PETITIONERS AT THE HOSPITAL. THUS, THE
PATIENTS ALLEGED INJURY (PROLONGED PAIN AND
SUFFERING) WAS DUE TO HIS OWN MOTHERS ACT OR
OMISSION.

5. THE COURT OF APPEALS ERRED IN NOT
HOLDING THAT NO PHYSICIAN-PATIENT RELATIONSHIP
EXISTED BETWEEN PETITIONERS AND PATIENT ALFONSO
SANTIAGO, JR., PETITIONERS NOT BEING THE LATTERS
ATTENDING PHYSICIAN AS THEY WERE MERELY
REQUESTED BY THE EMERGENCY ROOM (ER) NURSE TO
SEE THE PATIENT WHILE THEY WERE PASSING BY THE ER
FOR THEIR LUNCH.

6. THE COURT OF APPEALS GRAVELY ERRED IN
NOT ACQUITTING ACCUSED-PETITIONERS OF THE CRIME
CHARGED.
[9]



The foregoing can be synthesized into two basic issues: [1] whether or not the
doctrine of res ipsa loquitur is applicable in this case; and [2] whether or not the
petitioners are liable for criminal negligence.

THE COURTS RULING

The CA is correct in finding that there was negligence on the part of the
petitioners. After a perusal of the records, however, the Court is not convinced that the
petitioners are guilty of criminal negligence complained of. The Court is also of the view
that the CA erred in applying the doctrine ofres ipsa loquitur in this particular case.

As to the Application of
The Doctrine of Res Ipsa Loquitur

This doctrine of res ipsa loquitur means "Where the thing which causes injury is
shown to be under the management of the defendant, and the accident is such as in the
ordinary course of things does not happen if those who have the management use proper
care, it affords reasonable evidence, in the absence of an explanation by the defendant,
that the accident arose from want of care." The Black's Law Dictionary defines the said
doctrine. Thus:

The thing speaks for itself. Rebuttable presumption or
inference that defendant was negligent, which arises upon proof
that the instrumentality causing injury was in defendant's exclusive
control, and that the accident was one which ordinarily does not
happen in absence of negligence. Res ipsa loquitur is a rule of
evidence whereby negligence of the alleged wrongdoer may be
inferred from the mere fact that the accident happened provided
the character of the accident and circumstances attending it lead
reasonably to belief that in the absence of negligence it would not
have occurred and that thing which caused injury is shown to have
been under the management and control of the alleged wrongdoer.
Under this doctrine, the happening of an injury permits an
inference of negligence where plaintiff produces substantial
evidence that the injury was caused by an agency or instrumentality
under the exclusive control and management of defendant, and that
the occurrence was such that in the ordinary course of things would
not happen if reasonable care had been used.
[10]



The doctrine of res ipsa loquitur as a rule of evidence is unusual to the law of
negligence which recognizes that prima facie negligence may be established without
direct proof and furnishes a substitute for specific proof of negligence. The doctrine,
however, is not a rule of substantive law, but merely a mode of proof or a mere
procedural convenience. The rule, when applicable to the facts and circumstances of a
given case, is not meant to and does not dispense with the requirement of proof of
culpable negligence on the party charged. It merely determines and regulates what shall
be prima facieevidence thereof and helps the plaintiff in proving a breach of the
duty. The doctrine can be invoked when and only when, under the circumstances
involved, direct evidence is absent and not readily available.
[11]


The requisites for the application of the doctrine of res ipsa loquitur are: (1) the
accident was of a kind which does not ordinarily occur unless someone is
negligent; (2) the instrumentality or agency which caused the injury was under the
exclusive control of the person in charge; and (3) the injury suffered must not have been
due to any voluntary action or contribution of the person injured.
[12]


In this case, the circumstances that caused patient Roy Jr.s injury and the series
of tests that were supposed to be undergone by him to determine the extent of the injury
suffered were not under the exclusive control of Drs. Jarcia and Bastan. It was
established that they are mere residents of the ManilaDoctors Hospital at that time who
attended to the victim at the emergency room.
[13]
While it may be true that the
circumstances pointed out by the courts below seem doubtless to constitute reckless
imprudence on the part of the petitioners, this conclusion is still best achieved, not
through the scholarly assumptions of a layman like the patients mother, but by the
unquestionable knowledge of expert witness/es. As to whether the petitioners have
exercised the requisite degree of skill and care in treating patient Roy, Jr. is generally a
matter of expert opinion.

As to Dr. Jarcia and
Dr. Bastans negligence

The totality of the evidence on record clearly points to the negligence of the
petitioners. At the risk of being repetitious, the Court, however, is not satisfied that Dr.
Jarcia and Dr. Bastan are criminally negligent in this case.

Negligence is defined as the failure to observe for the protection of the interests of
another person that degree of care, precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers injury.
[14]


Reckless imprudence consists of voluntarily doing or failing to do, without
malice, an act from which material damage results by reason of aninexcusable lack of
precaution on the part of the person performing or failing to perform such act.
[15]


The elements of simple negligence are: (1) that there is lack of precaution on the
part of the offender, and (2) that the damage impending to be caused is not immediate or
the danger is not clearly manifest.
[16]


In this case, the Court is not convinced with moral certainty that the petitioners
are guilty of reckless imprudence or simple negligence. The elements thereof were not
proved by the prosecution beyond reasonable doubt.

The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist in pediatric
orthopedic, although pointing to some medical procedures that could have been done by
Dr. Jarcia and Dr. Bastan, as physicians on duty, was not clear as to whether the injuries
suffered by patient Roy Jr. were indeed aggravated by the petitioners judgment call and
their diagnosis or appreciation of the condition of the victim at the time they assessed
him. Thus:

Q: Will you please tell us, for the record, doctor, what is your
specialization?
A: At present I am the chairman department of orthopedic in UP-
PGH and I had special training in pediatric orthopedic for two
(2) years.

Q: In June 1998, doctor, what was your position and what was
your specialization at that time?
A: Since 1980, I have been specialist in pediatric orthopedic.

Q: When Alfonso Santiago, Jr. was brought to you by his mother,
what did you do by way of physicians as first step?
A: As usual, I examined the patient physically and, at that time as
I have said, the patient could not walk so I [began] to suspect
that probably he sustained a fracture as a result of a vehicular
accident. So I examined the patient at that time, the involved
leg, I dont know if that is left or right, the involved leg then
was swollen and the patient could not walk, so I requested for
the x-ray of [the] lower leg.

Q: What part of the leg, doctor, did you request to be examined?
A: If we refer for an x-ray, usually, we suspect a fracture whether
in approximal, middle or lebistal tinial, we usually x-ray the
entire extremity.

Q: And what was the result?
A: Well, I can say that it was a spiral fracture of the mid-tibial, it
is the bigger bone of the leg.

Q: And when you say spiral, doctor, how long was this fracture?
A: When we say spiral, it is a sort of letter S, the length was about
six (6) to eight (8) centimeters.

Q: Mid-tibial, will you please point to us, doctor, where the tibial
is?
(Witness pointing to his lower leg)
A: The tibial is here, there are two bones here, the bigger one is
the tibial and the smaller one is the fibula. The bigger one is
the one that get fractured.

Q: And in the course of your examination of Alfonso Santiago, Jr.
did you ask for the history of such injury?
A: Yes, actually, that was a routine part of our examination that
once a patient comes in, before we actually examine the
patient, we request for a detailed history. If it is an accident,
then, we request for the exact mechanism of injuries.

Q: And as far as you can recall, Doctor, what was the history of
that injury that was told to you?
A: The patient was sideswiped, I dont know if it is a car, but it is a
vehicular accident.

Q: Who did you interview?
A: The mother.

Q: How about the child himself, Alfonso Santiago, Jr.?
A: Normally, we do not interview the child because, usually, at his
age, the answers are not accurate. So, it was the mother that I
interviewed.

Q: And were you informed also of his early medication that was
administered on Alfonso Santiago, Jr.?
A: No, not actually medication. I was informed that this patient
was seen initially at the emergency room by the two (2)
physicians that you just mentioned, Dr. Jarcia and Dra.
Bastan, that time who happened to be my residents who were
[on] duty at the emergency room.

x x x x

A: At the emergency room, at the Manila Doctors Hospital, the
supervisor there is a consultant that usually comes from a
family medicine. They see where a certain patient have to go
and then if they cannot manage it, they refer it to the
consultant on duty. Now at that time, I dont why they dont
Because at that time, I think, it is the decision. Since the x-
rays

x x x

Q: You also said, Doctor, that Dr. Jarcia and Dra. Bastan are not
even an orthopedic specialist.
A: They are general surgeon residents. You have to man[x] the
emergency room, including neurology, orthopedic, general
surgery, they see everything at the emergency room.

x x x x

Q: But if initially, Alfonso Santiago, Jr. and his case was presented
to you at the emergency room, you would have subjected the
entire foot to x-ray even if the history that was given to Dr.
Jarcia and Dra. Bastan is the same?
A: I could not directly say yes, because it would still depend on my
examination, we cannot subject the whole body for x-ray if we
think that the damaged was only the leg.

Q: Not the entire body but the entire leg?
A: I think, if my examination requires it, I would.

Q: So, you would conduct first an examination?
A: Yes, sir.

Q: And do you think that with that examination that you would
have conducted you would discover the necessity subjecting the
entire foot for x-ray?
A: It is also possible but according to them, the foot and the ankle
were swollen and not the leg, which sometimes normally happens
that the actual fractured bone do not get swollen.

x x x x

Q: Doctor, if you know that the patient sustained a fracture on the
ankle and on the foot and the history that was told to you is the
region that was hit is the region of the foot, will the doctor
subject the entire leg for x-ray?
A: I am an orthopedic surgeon, you have to subject an x-ray of the
leg. Because you have to consider the kind of fracture that the
patient sustained would you say the exact mechanism of injury.
For example spiral, paikot yung bale nya, so it was possible
that the leg was run over, the patient fell, and it got twisted.
Thats why the leg seems to be fractured.
[17]
[Emphases
supplied]

It can be gleaned from the testimony of Dr. Tacata that a thorough examination
was not performed on Roy Jr. As residents on duty at the emergency room, Dr. Jarcia and
Dr. Bastan were expected to know the medical protocol in treating leg fractures and in
attending to victims of car accidents. There was, however, no precise evidence and
scientific explanation pointing to the fact that the delay in the application of the cast to
the patients fractured leg because of failure to immediately diagnose the specific injury
of the patient, prolonged the pain of the child or aggravated his condition or even caused
further complications. Any person may opine that had patient Roy Jr. been treated
properly and given the extensive X-ray examination, the extent and severity of the injury,
spiral fracture of the mid-tibial part or the bigger bone of the leg, could have been
detected early on and the prolonged pain and suffering of Roy Jr. could have been
prevented. But still, that opinion, even how logical it may seem would not, and could not,
be enough basis to hold one criminally liable; thus, a reasonable doubt as to the
petitioners guilt.

Although the Court sympathizes with the plight of the mother and the child in this
case, the Court is bound by the dictates of justice which hold inviolable the right of the
accused to be presumed innocent until proven guilty beyond reasonable doubt. The Court,
nevertheless, finds the petitionerscivilly liable for their failure to sufficiently attend to
Roy Jr.s medical needs when the latter was rushed to the ER, for while a criminal
conviction requires proof beyond reasonable doubt, only a preponderance of evidence is
required to establish civil liability. Taken into account also was the fact that there was no
bad faith on their part.

Dr. Jarcia and Dr. Bastan cannot pass on the liability to the taxi driver who hit the
victim. It may be true that the actual, direct, immediate, and proximate cause of the injury
(fracture of the leg bone or tibia) of Roy Jr. was the vehicular accident when he was hit
by a taxi. The petitioners, however, cannot simply invoke such fact alone to excuse
themselves from any liability. If this would be so, doctors would have a ready defense
should they fail to do their job in attending to victims of hit-and-run, maltreatment, and
other crimes of violence in which the actual, direct, immediate, and proximate cause of
the injury is indubitably the act of the perpetrator/s.

In failing to perform an extensive medical examination to determine the extent of
Roy Jr.s injuries, Dr. Jarcia and Dr. Bastan were remiss of their duties as members of the
medical profession. Assuming for the sake of argument that they did not have the
capacity to make such thorough evaluation at that stage, they should have referred the
patient to another doctor with sufficient training and experience instead of assuring him
and his mother that everything was all right.

This Court cannot also stamp its imprimatur on the petitioners contention that no
physician-patient relationship existed between them and patient Roy Jr., since they were
not his attending physicians at that time. They claim that they were merely requested by
the ER nurse to see the patient while they were passing by the ER for their lunch. Firstly,
this issue was never raised during the trial at the RTC or even before the CA. The
petitioners, therefore, raise the want of doctor-patient relationship for the first time on
appeal with this Court. It has been settled that issues raised for the first time on appeal
cannot be considered because a party is not permitted to change his theory on appeal. To
allow him to do so is unfair to the other party and offensive to the rules of fair play,
justice and due process.
[18]
Stated differently, basic considerations of due process dictate
that theories, issues and arguments not brought to the attention of the trial court need not
be, and ordinarily will not be, considered by a reviewing court.
[19]


Assuming again for the sake of argument that the petitioners may still raise this
issue of no physicianpatient relationship, the Court finds and so holds that there was a
physicianpatient relationship in this case.

In the case of Lucas v. Tuao,
[20]
the Court wrote that [w]hen a patient engages
the services of a physician, a physician-patient relationship is generated. And in accepting
a case, the physician, for all intents and purposes, represents that he has the needed
training and skill possessed by physicians and surgeons practicing in the same field; and
that he will employ such training, care, and skill in the treatment of the patient. Thus, in
treating his patient, a physician is under a duty to exercise that degree of care, skill and
diligence which physicians in the same general neighborhood and in the same general
line of practice ordinarily possess and exercise in like cases. Stated otherwise, the
physician has the obligation to use at least the same level of care that any other
reasonably competent physician would use to treat the condition under similar
circumstances.

Indubitably, a physician-patient relationship exists between the petitioners and
patient Roy Jr. Notably, the latter and his mother went to the ER for an immediate
medical attention. The petitioners allegedly passed by and were requested to attend to the
victim (contrary to the testimony of Dr. Tacata that they were, at that time, residents on
duty at the ER).
[21]
They obliged and examined the victim, and later assured the mother
that everything was fine and that they could go home. Clearly, a physician-patient
relationship was established between the petitioners and the patient Roy Jr.

To repeat for clarity and emphasis, if these doctors knew from the start that they
were not in the position to attend to Roy Jr., a vehicular accident victim, with the degree
of diligence and commitment expected of every doctor in a case like this, they should
have not made a baseless assurance that everything was all right. By doing so, they
deprived Roy Jr. of adequate medical attention that placed him in a more dangerous
situation than he was already in. What petitioners should have done, and could have
done, was to refer Roy Jr. to another doctor who could competently and thoroughly
examine his injuries.

All told, the petitioners were, indeed, negligent but only civilly, and not
criminally, liable as the facts show.

Article II, Section 1 of the Code of Medical Ethics of the Medical Profession in
the Philippines states:

A physician should attend to his patients faithfully and
conscientiously. He should secure for them all possible benefits
that may depend upon his professional skill and care. As the sole
tribunal to adjudge the physicians failure to fulfill his obligation to
his patients is, in most cases, his own conscience, violation of this
rule on his part is discreditable and inexcusable.
[22]



Established medical procedures and practices, though in constant instability, are
devised for the purpose of preventing complications. In this case, the petitioners failed to
observe the most prudent medical procedure under the circumstances to prevent the
complications suffered by a child of tender age.

As to the Award of
Damages

While no criminal negligence was found in the petitioners failure to administer
the necessary medical attention to Roy Jr., the Court holds them civilly liable for the
resulting damages to their patient. While it was the taxi driver who ran over the foot or
leg of Roy Jr., their negligence was doubtless contributory.

It appears undisputed that the amount of !3,850.00, as expenses incurred by
patient Roy Jr., was adequately supported by receipts. The Court, therefore, finds the
petitioners liable to pay this amount by way of actual damages.

The Court is aware that no amount of compassion can suffice to ease the sorrow
felt by the family of the child at that time. Certainly, the award of moral and exemplary
damages in favor of Roy Jr. in the amount of !100,000.00 and !50,000.00, respectively,
is proper in this case.

It is settled that moral damages are not punitive in nature, but are designed to
compensate and alleviate in some way the physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock, social
humiliation, and similar injury unjustly inflicted on a person. Intended for the restoration
of the psychological or emotional status quo ante, the award of moral damages is
designed to compensate emotional injury suffered, not to impose a penalty on the
wrongdoer.
[23]


The Court, likewise, finds the petitioners also liable for exemplary damages in the
said amount. Article 2229 of the Civil Code provides that exemplary damages may be
imposed by way of example or correction for the public good.

WHEREFORE, the petition is PARTLY GRANTED. The Decision of the
Court of Appeals dated August 29, 2008 is REVERSED and SET ASIDE. A new
judgment is entered ACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr. Marilou Bastan of
the crime of reckless imprudence resulting to serious physical injuries but declaring them
civilly liable in the amounts of:


(1) !3,850.00 as actual damages;
(2) !100,000.00 as moral damages;
(3) !50,000.00 as exemplary damages; and
(4) Costs of the suit.

with interest at the rate of 6% per annum from the date of the filing of the Information.
The rate shall be 12% interest per annum from the finality of judgment until fully paid.

SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 194259 March 16, 2011
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
JIMMY ALVERIO, Accused-Appellant.
D E C I S I O N
VELASCO, JR., J.:
The Case
This is an appeal from the March 25, 2010 Decision
1
of the Court of Appeals (CA) in CA-G.R.
CR-H.C. No. 00020, which affirmed the August 26, 2004 Decision in Criminal Case No. CB-
02-195 of the Regional Trial Court (RTC), Branch 37 in Caibiran, Naval, Biliran.
2
The RTC
convicted accused Jimmy Alverio (Alverio) of rape.
The Facts
The charge against Alverio stemmed from the following Information:
That on or about the 3rd day of June, 2002, at about 2:00 oclock early dawn, more or less,
at [PPP],
3
Philippines, and within the jurisdiction of this Honorable Court, while [AAA] was on
her way to her grandmothers house from the benefit dance, herein accused, a cousin of
herein complainant, with lewd designs, and by means of force and intimidation, get hold of
her arm and did then and there drag her to the back of the barangay hall, by holding her hair
and forcibly laid her to the ground, willfully, unlawfully and feloniously poked her a short
bladed weapon known as pisao forcibly took off her pants and panty and succeeded in
having carnal knowledge with her against her will to her damage and prejudice.
Contrary to law.
4

On July 3, 2003, Alverio, with the assistance of his counsel de oficio, was arraigned, and he
pleaded "not guilty" to the charge against him. After the pre-trial, trial on the merits ensued.
During the trial, the prosecution offered the sole testimony of the private complainant. On the
other hand, the defense presented accused Alverio, Henry Toledo (Toledo), and Lily Toledo
as its witnesses.
The Prosecutions Version of Facts
In the afternoon of June 2, 2002, AAA, along with her friends Belen Sabanag (Sabanag) and
Aileen Sinangote (Sinangote), went to the house of her grandmother to attend a dance
event.
5
At around 8:30 in the evening, they proceeded to the dance hall because the dance
would start at around 9 oclock.
6
During the dance, Sabanag and Sinangote danced with
Alverio but AAA did not.
7
At 2 oclock in the morning of June 3, 2002, AAA noticed that her
friends were no longer at the dance so she decided to go home to her grandmothers house.
8

As she was nearing the barangay hall, Alverio suddenly appeared and took hold of AAA. She
tried to resist him but he was too strong and he managed to pull her away. AAA started to cry
while she was being dragged towards the back of the barangay hall.
9
There, Alverio held her
hair, undressed her, and started to kiss her.
10
AAA kept on resisting and even punched
Alverio after he kissed her, at which point, Alverio told her that it was painful and that he
might retaliate if she continued.
11
This caused AAA to stop resisting and Alverio then
proceeded to insert his penis in her vagina repeatedly.
12

After having carnal knowledge with her, Alverio stood up and put on his clothes. He warned
AAA that if she told anyone about what happened, he will kill her.
13
After threatening her, he
left.
During this entire incident, Alverio was armed with a knife which he used to poke AAAs side.
Dazed, AAA could not muster enough strength to go home. She just sat on the road beside
the barangay hall until 5 oclock in the morning when her Uncle Intoy passed by. He brought
her home to her parents but she did not tell him anything. Upon reaching home, AAA told her
parents about what happened.
14

Version of the Defense
Alverios defense, on the other hand, was confined to his denial of the accusation and an
alibi, to wit:
Sometime around 7:30 in the evening of June 2, 2002, Alverio recalled that he was in the
barangay chapel with his friend, Toledo, waiting for the dance to begin.
15
The dance hall was
just adjacent to the barangay chapel. At 8:30 in the evening, the dance started. He danced
with some persons whose names he could no longer recall.
16
But he categorically
remembered that he did not see AAA in the dance area.
17

At 12:00 midnight, Alverio and Toledo walked home to Toledos house, where Alverio was
staying.
18
On their way home, they passed by the barangay hall.
19
Upon reaching home, they
slept and woke up at 5:30 in the morning of June 3, 2002.
20

In his testimony, Alverio admitted that he and AAA are cousins, their mothers being sisters.
21

His testimony was corroborated by Toledo
22
and Toledos mother, Lily Toledo.
23

Ruling of the Trial Court
After trial, the RTC convicted Alverio. The dispositive portion of its August 26, 2004 Decision
reads:
WHEREFORE, premises considered, judgment is hereby rendered finding the accused
JIMMY ALVERIO guilty beyond reasonable doubt of the crime of rape. With no aggravating
or mitigating circumstance, he is sentenced to the lesser penalty of reclusion perpetua; to
indemnify [AAA] Fifty Thousand (P50,000.00) Pesos; and to pay the costs.
SO ORDERED.
24

On appeal to the CA, Alverio disputed the trial courts finding of his guilt beyond reasonable
doubt of the crime charged. He argued that the presumption of innocence should prevail
especially considering that the prosecution only had a single testimony to support the charge
of rape.
Ruling of the Appellate Court
On March 25, 2010, the CA affirmed the judgment of the RTC. The dispositive portion of the
CA Decision reads:
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court, Branch 37,
Caibiran, Naval, Biliran in Criminal Case No. CB-02-195 convicting the accused-appellant is
AFFIRMED with MODIFICATION in that he is also hereby adjudged liable to pay the victim
the amount of Php50,000.00 as moral damages.
His penalty of reclusion perpetua and the award of civil indemnity of Php50,000.00 stands.
Costs against the accused-appellant.
SO ORDERED.
25

The Issue
Alverio now comes before this Court with the lone assignment of error contending that "[t]he
trial court gravely erred in finding the accused-appellant guilty beyond reasonable doubt of
rape."
26

The Courts Ruling
We sustain Alverios conviction.
In his Brief, Alverio argues that the trial court should have taken the lone testimony of the
complainant with caution and that the testimony should have been weighed carefully, taking
into consideration the constitutional precept that in all criminal prosecutions, the accused
must be presumed innocent unless the contrary is proved.
Alverio raises three (3) grounds in support of his argument. First, he assails the trial court for
giving credence to the sole testimony of the victim. He claims that the prosecution should
have presented other witnesses to corroborate the testimony of the victim. Second, he
contends that the medical certificate presented as evidence was not testified to by the
signatory himself and should therefore not be considered as corroborative evidence. Lastly,
he claims that the trial court gravely erred in convicting him of the crime of rape for failure of
the prosecution to prove his guilt beyond reasonable doubt.
After a careful perusal of the records of this case, however, the Court is satisfied that the
prosecutions evidence sufficiently established Alverios guilt with moral certainty.
In People v. Malate,
27
We reiterated the principles with which courts are guided in
determining the guilt or innocence of the accused in rape cases, viz:
x x x (1) an accusation of rape can be made with facility and while the accusation is difficult
to prove, it is even more difficult for the person accused, though innocent, to disprove the
charge; (2) considering that, in the nature of things, only two persons are usually involved in
the crime of rape, the testimony of the complainant should be scrutinized with great caution;
and (3) the evidence of the prosecution must stand or fall on its own merit, and cannot be
allowed to draw strength from the weakness of the evidence for the defense.
Moreover, in that same case, this Court held that "in cases involving the prosecution for
forcible rape x x x corroboration of the victims testimony is not a necessary condition to a
conviction for rape where the victims testimony is credible, or clear and convincing or
sufficient to prove the elements of the offense beyond a reasonable doubt."
28
As such,
appellate courts generally do not disturb the findings of the trial court with regard to the
assessment of the credibility of witnesses,
29
the reason being that the trial court has the
"unique opportunity to observe the witnesses first hand and note their demeanor, conduct
and attitude under grilling examination."
30
More importantly, courts generally give full
credence to the testimony of a complainant for rape, especially one who is only a minor.
31

The exceptions to this rule are when the trial courts findings of facts and conclusions are not
supported by the evidence on record, or when certain facts of substance and value likely to
change the outcome of the case have been overlooked by the lower court, or when the
assailed decision is based on a misapprehension of facts.
32
However, this Court finds none of
these exceptions present in the instant case.
The victim testified in a steadfast and straightforward manner, to wit:
PROS. JOCOBO:
Q Now can you tell now [since] there are no more persons around except you and
the accused can tell to the Court, or were you able to reach in the house of your lola?
A When I was walking I was suddenly held by Jimmy Alverio.
Q Where were you already walking did Jimmy Alverio suddenly held you?
A Near Brgy. Hall of Brgy. Maurang.
Q What happened next after you were held by Jimmy Alverio near the brgy. hall of
Maurang?
A He tried to pull me but then I resisted, and Jimmy insisted by pulling me until I
cried.
Q Then even if you were already crying what next happened?
A He drag me towards the back of the Brgy hall.
Q Did you in fact drag to the brgy. hall?
A Yes sir.
Q While you were at the back of the brgy. hall can you tell this Honorable Court what
happened?
A [He] held my hair and he tried to undressed me but I resisted.
Q Since he tried to undressed [sic] you and you were resisted [sic] was he able or
was he successful in undressing you?
A Yes sir.
Q Despite of your resistance?
A Yes sir.
Q When you were already undressed what happened, can you tell this to the
Honorable Court?
A He tried kissed [sic] me several times and I resisted and I boxed him.
Q After you have boxed him after kissing you what next happened?
A He said that is painful I might retaliate with you.
Q After hearing on that what did Jimmy had done to you?
A I just cried I did not mind him anymore.
Q How about Jimmy what was he doing?
A He continued kissing me.
Q After kissing you what next follow?
ATTY. SABANDAL:
I would like to request Your Honor that the prosecution would discontinue and
encouraging very much because its up to the witness to answer Your Honor the
question. Since previously it would [seem] that the witness could be able to answer
only after so much question!
PROS. JOBOCO:
Your Honor please according to the circular on examining minors we will to give full
support and we to understand the minors especially if victims of minor cases.
ATTY. SABANDAL:
It was not established that she is a minor, Your Honor.
COURT:
She is 14 years old.
FROM THE COURT:
Q Now you said that you were undressed by Jimmy Alverio, do you mean to say that
you were already naked when you said undressed?
A Yes sir.
Q And when Jimmy Alverio kissing you several times were you already naked?
A Yes sir.
x x x x
Q What did Jimmy do more while he was kissing several times and you were naked?
COURT INTERPRETER:
At this juncture Your Honor the witness is crying.
COURT:
Q And when you were naked was Jimmy also naked?
A Yes sir.
x x x x
Q You were naked and Jimmy Alverio was also naked and Jimmy Alverio was
kissing you so many times, what more did Jimmy Alverio do to you?
A He inserted his penis.
Q What were your position, were you standing, or you were lying down?
A Lying position.
Q Or something was placed on the ground?
A On the ground.
COURT:
Alright Pros. Joboco you can proceed the continuation of your direct examination.
PROS. JOBOCO:
Q When you said when Jimmy Alverio was inserted his penis where was inserted?
A to my vagina.
Q And when Jimmy inserted his penis to your vagina what did you feel?
A I felt pain.
Q And when you felt pain what did you do?
A I kept on crying.
PROS. JOBOCO:
I think that would be all Your Honor I think the witness already crying.
COURT:
How many times did Jimmy insert his penis to your vagina?
A three (3) times.
Q After the three (3) times intercourse with you what did Jimmy do to you?
A He stood up and he dressed himself and he left me.
Q Did he not leave words to you?
A He told me that if you will told anybody in your family, your mother and your father I
will kill you.
Q Was she have arm [sic] at that time of the incident?
A Yes sir.
Q What arm or firearm or what?
A a knife.
Q Did he use that in forcing you to do the sexual acts?
A Yes sir.
Q By what means did he threatened you?
A He poke it at my side.
Q Now what would you mean, he poke it at my side, what did you do?
A I remain there crying.
33

It is strikingly clear from the above transcript that AAAs testimony was very coherent and
candid. Thus, We find no reason to overturn the findings of the trial court.
In addition, Alverio submits that although the medical certificate was presented as evidence,
its contents were never testified to by the signatory himself and, as such, cannot be
considered as corroborative of the claim of the victim that she was raped.
Such argument, however, cannot prosper. Medical evidence is dispensable and merely
corroborative in proving the crime of rape. Besides, a medical certificate is not even
necessary to prove the crime of rape.
34
The gravamen of rape is carnal knowledge of a
woman through force and intimidation.
35

The elements needed to prove the crime of rape under paragraph 1(a) of Article 266-A of the
Revised Penal Code are: (1) the offender is a man; (2) the offender had carnal knowledge of
a woman; and (3) the act is accomplished by using force or intimidation. All these elements
were sufficiently proved by the prosecution. The testimony of AAA overwhelmingly proves
that Alverio raped her with the use of force and intimidation.
Furthermore, Alverios defense of alibi cannot stand versus the positive identification of AAA.
Nothing is more settled in criminal law jurisprudence than the rule that alibi and denial cannot
prevail over the positive and categorical testimony and identification of the accused by the
complainant.
36

Accordingly, We find that the prosecution has discharged its burden of proving the guilt of
Alverio beyond reasonable doubt.
As to the award of damages, the CA was correct in awarding PhP 50,000 as moral damages
without need of proof. However, in line with current jurisprudence,
37
an additional award of
PhP 30,000 as exemplary damages should likewise be given, as well as interest of six
percent (6%) per annum on all damages awarded from the finality of judgment until fully paid.
WHEREFORE, the appeal is DENIED. The CA Decision in CA-G.R. CR-H.C. No. 00020
finding accused-appellant Jimmy Alverio guilty of the crime charged is AFFIRMED with
MODIFICATION. As modified, the ruling of the trial court should read as follows:
WHEREFORE, premises considered, judgment is hereby rendered finding the accused
JIMMY ALVERIO guilty beyond reasonable doubt of the crime of rape. With no aggravating
or mitigating circumstance, he is sentenced to the lesser penalty of reclusion perpetua; to
pay [AAA] Fifty Thousand (P50,000.00) Pesos as civil indemnity, Fifty Thousand
(P50,000.00) as moral damages and Thirty Thousand (P30,000.00) as exemplary damages
with interest of six percent (6%) per annum on all awards of damages from the finality of
judgment until fully paid; and to pay the costs.
SO ORDERED.
"#$%&# ' ($)*+,*-

Appellant, 29 years old, was charged with rape with homicide for the death
of Jennifer Domantay, a 6-year old girl whose body was found in a bamboo
grove with 38 stab wounds at the back and whose hymen was completely
lacerated on the right side, though found fully clothed in blue shorts and white
shirt. The trial court found appellant guilty as charged and was sentenced to
death. Conviction was based primarily on the testimonies of SPO1 Espinoza
and Celso Manuel, a radio reporter. SPO1 Espinoza testified that appellant
confessed to the killing of Jennifer and disclosed to him the location of the
bayonet used which was submitted as evidence for the prosecution. According
to him, appellant waived assistance of counsel but the waiver was not put in
writing nor made in the presence of counsel. On the other hand, Manuel
declared that appellant, in an interview, admitted the brutal killing of Jennifer;
that he was just outside the cell when he interviewed appellant accompanied by
his uncle inside the jail, that the nearest policemen were about 2-3 meters from
him and that no lawyer assisted appellant during the interview. Also presented
as a witness was Dr. Bandonill, medico-legal expert of the NBI, who testified
that it was possible that the lacerations on the victim could have been caused by
something blunt other than the male organ. Raised in this appeal was the
admissibility of two confessions made before SPO1 Espinoza and Manuel
which appellant claimed to have been obtained from him in violation of Section
12(1), Article III of the Constitution.
The right to counsel of a person under custodial investigation can be
waived only in writing and with assistance of counsel and that confessions or
admissions obtained in violation thereof are inadmissible in
evidence. However, this prohibition does not apply to confessions or
admissions made to private individuals, such as radio reporters.
Abuse of superior strength is appreciated where the victim, a six-year old
child, was assaulted by a fully grown man of 29 years.
A physicians finding, standing alone, that the hymen of the alleged victim
was lacerated does not prove rape. It must be corroborated by other evidence
proving carnal knowledge. The prosecution having failed to establish the fact
of rape, appellant was found guilty of homicide, not rape with homicide, with
the aggravating circumstance of abuse of superior strength.
SECOND DIVISION
[G.R. No. 159738. December 9, 2004]
UNION MOTOR CORPORATION, petitioner, vs. NATIONAL
LABOR RELATIONS COMMISSION and ALEJANDRO A.
ETIS,respondents.
D E C I S I O N
CALLEJO, SR., J.:
This is a petition for review on certiorari filed by petitioner Union
Motor Corporation of the April 10, 2003 Decision
[1]
of the Court of
Appeals (CA) in CA-G.R. SP No. 73602 which affirmed the decision of
the National Labor Relations Commission (NLRC) holding that
respondent Alejandro A. Etis was illegally dismissed from his
employment.
On October 23, 1993, the respondent was hired by the petitioner as
an automotive mechanic at the service department in the latters Paco
Branch. In 1994, he was transferred to the Caloocan City Branch,
where his latest monthly salary was P6,330.00. During his employment,
he was awarded the Top Technician for the month of May in 1995 and
Technician of the Year (1995). He also became a member of the
Exclusive P40,000.00 Club and received the Model Employee Award in
the same year.
On September 22, 1997, the respondent made a phone call to
Rosita dela Cruz, the company nurse, and informed her that he had to
take a sick leave as he had a painful and unbearable toothache. The
next day, he again phoned Dela Cruz and told her that he could not
report for work because he still had to consult a doctor. Finding that the
respondents ailment was due to a tooth inflammation, the doctor
referred him to a dentist for further management.
[2]
Dr. Rodolfo Pamor, a
dentist, then scheduled the respondents tooth extraction on September
27, 1997, hoping that, by that time, the inflammation would have
subsided. Upon instructions from the management, Mr. Dumagan, a
company security guard, visited the respondent in his house
on September 24, 1997 and confirmed that the latter was ill.
On September 27, 1997, Dr. Pamor rescheduled the respondents
tooth extraction on October 4, 1997 because the inflammation had not
yet subsided and recommended that he rest. Thus, the respondent was
not able to report for work due to the painful and unbearable toothache.
On October 2, 1997, the petitioner issued an Inter Office
Memorandum
[3]
through Angelo B. Nicolas, the manager of its Human
Resources Department, terminating the services of the respondent for
having incurred more than five (5) consecutive absences without proper
notification. The petitioner considered the consecutive absences of the
respondent as abandonment of office under Section 6.1.1, Article III of
the Company Rules.
On October 4, 1997, Dr. Pamor successfully extracted the
respondents tooth. As soon as he had recovered, the respondent
reported for work, but was denied entry into the companys
premises. He was also informed that his employment had already been
terminated. The respondent sought help from the union which, in turn,
included his grievance in the arbitration before the National Conciliation
and Mediation Board (NCMB). Pending the resolution thereof, the
respondent wrote to the petitioner asking for the reconsideration of his
dismissal,
[4]
which was denied. Sometime thereafter, the unions
complaints were dismissed by the NCMB.
Left with no other recourse, the respondent filed, on May 18, 1999, a
complaint for illegal dismissal before the arbitration branch of the NLRC
against the petitioner and/or Benito Cua, docketed as NLRC-NCR Case
No. 00-05-05691-99.
[5]

The respondent alleged that he was dismissed from his employment
without just and legal basis. For its part, the petitioner averred that his
dismissal was justified by his ten (10) unauthorized absences. It posited
that, under Article 282 of the Labor Code, an employees gross and
habitual neglect of his duties is a just cause for termination. It further
alleged that the respondents repetitive and habitual acts of being
absent without notification constituted nothing less than abandonment,
which is a form of neglect of duties.
[6]

On October 19, 2000, the Labor Arbiter rendered a Decision
dismissing the complaint. The Labor Arbiter ruled that the respondents
failure to report for work for ten (10) days without an approved leave of
absence was equivalent to gross neglect of duty, and that his claim that
he had been absent due to severe toothache leading to a tooth
extraction was unsubstantiated. The Labor Arbiter stressed that
unnotarized medical certificates were self-serving and had no probative
weight.
Aggrieved, the respondent appealed the decision to the NLRC,
docketed as NLRC NCR CA No. 027002-01. He alleged therein that
I
THE HONORABLE LABOR ARBITER COMMITTED GRAVE ABUSE OF
DISCRETION IN DISMISSING THE COMPLAINT.
II
THERE ARE SERIOUS ERRORS IN THE FINDINGS OF FACTS WHICH
WOULD CAUSE GRAVE OR IRREPARABLE DAMAGE OR INJURY TO
HEREIN COMPLAINANT.
[7]

On November 29, 2001, the NLRC issued a Resolution reversing
the decision of the Labor Arbiter. The dispositive portion of the
resolution reads:
WHEREFORE, the assailed decision dated October 19, 2000 is SET ASIDE
and REVERSED. Accordingly, the respondent-appellee is hereby ordered to
immediately reinstate complainant to his former position without loss of
seniority rights and other benefits and payment of his full backwages from the
time of his actual dismissal up to the time of his reinstatement.
All other claims are dismissed for lack of merit.
[8]

The NLRC upheld the claim of the respondent that his successive
absences due to severe toothache was known to management. It ruled
that the medical certificates issued by the doctor and dentist who
attended to the respondent substantiated the latters medical
problem. It also declared that the lack of notarization of the said
certificates was not a valid justification for their rejection as
evidence. The NLRC declared that the respondents absence for ten
(10) consecutive days could not be classified as gross and habitual
neglect of duty under Article 282 of the Labor Code.
The NLRC resolved to deny the motion for reconsideration of the
petitioner, per its Resolution
[9]
dated August 26, 2002.
The petitioner, thereafter, filed a petition for certiorari under Rule 65
of the Rules of Court before the CA, docketed as CA-G.R. SP No.
73602. It raised the following issues:
Whether or not the public respondent gravely abused it[s] discretion,
amounting to lack or excess of jurisdiction in reversing the decision of the labor
arbiter a quo and finding that private respondent Alejandro A. Etis was illegally
dismissed.
Whether or not public respondent gravely abused its discretion in reinstating
private respondent Alejandro A. Etis to his former position without loss of
seniority rights and awarding him full backwages.
[10]

In its Decision
[11]
dated April 10, 2003, the CA affirmed in
toto the November 29, 2001 Resolution of the NLRC.
The CA agreed with the ruling of the NLRC that medical certificates
need not be notarized in order to be admitted in evidence and accorded
full probative weight. It held that the medical certificates which bore the
names and licenses of the doctor and the dentist who attended to the
respondent adequately substantiated the latters illness, as well as the
tooth extraction procedure performed on him by the dentist. The CA
concluded that since the respondents absences were substantiated, the
petitioners termination of his employment was without legal and factual
basis.
The CA similarly pointed out that even if the ten-day absence of the
respondent was unauthorized, the same was not equivalent to gross
and habitual neglect of duty. The CA took into consideration the
respondents unblemished service, from 1993 up to the time of his
dismissal, and the latters proven dedication to his job evidenced by no
less than the following awards: Top Technician of the Year (1995),
Member of the Exclusive P40,000.00 Club, and Model Employee of the
Year (1995).
The motion for reconsideration of the petitioner was denied by the
appellate court. Hence, the petition at bar.
The petitioner raises the following issues for the Courts resolution:
I
WHETHER OR NOT THE HONORABLE COURT OF APPEALS
COMMITTED REVERSIBLE ERROR IN GIVING MUCH
EVIDENTIARY WEIGHT TO THE MEDICAL CERTIFICATES
SUBMITTED BY THE PRIVATE RESPONDENT.
II
WHETHER OR NOT THE HONORABLE LABOR ARBITER
COMMITTED A REVERSIBLE ERROR IN RULING THAT
PRIVATE RESPONDENT WAS ILLEGALLY DISMISSED.
[12]

As had been enunciated in numerous cases, the issues that can be
delved with in a petition for review under Rule 45 are limited to
questions of law. The Court is not tasked to calibrate and assess the
probative weight of evidence adduced by the parties during trial all over
again.
[13]
Well-established is the principle that findings of fact of quasi-
judicial bodies, like the NLRC, are accorded with respect, even finality, if
supported by substantial evidence.
[14]
However, if, as in this case, the
findings of the Labor Arbiter clash with those of the NLRC and CA, this
Court is compelled to go over the records of the case, as well as the
submissions of the parties, and resolve the factual issues.
The petitioner avers that the respondents absences were
unauthorized, and that the latter failed to notify the petitioner in writing of
such absences, the reasons therefor, and his (respondents)
whereabouts as prescribed by the company rules. The petitioner avers
that its security guard caught the respondent at home, fit to work. The
petitioner further asserts that it was justified in dismissing the
respondent under Section 6.1.1, Article III of the Company Rules which
reads:
An employee who commits unauthorized absences continuously for five (5)
consecutive working days without notice shall be considered as having
abandoned his job and shall be terminated for cause with applicable laws.
The petitioner contends that the respondents dismissal was also
justified under Article 282(b) of the Labor Code, which provides that an
employer may dismiss an employee due to gross and habitual neglect
of his duties.
The contention of the petitioner has no merit.
The NLRC ruled that the respondent notified the petitioner of his
illness through the company nurse, and that the petitioner even
dispatched a security guard to the respondents house to ascertain the
reason of his absences, thus:
The termination by respondent-appellee of complainants service despite
knowledge of complainants ailment, as shown by the telephone calls made by
the latter to the company nurse and the actual confirmation made by
respondents company guard, who personally visited complainants residence,
clearly establishes the illegality of complainants dismissal. The documentary
testimonies of the nurse, Miss Rosita dela Cruz, regarding complainants
telephone calls and the confirmation made by respondents security guard, Mr.
Dumagan, are evidentiary matters which are relevant and material and must be
considered to the fullest by the Labor Arbiter a quo. These circumstantial facts
were miserably set aside by the Labor Arbiter a quo wherein he concluded that
complainant committed gross neglect of duty on alleged continued absences is
to our mind, not fully substantiated and ought not be given credence by this
Commission. Time and again, this Tribunal impresses that, in labor
proceedings, in case of doubt, the doubt must be reasonably in favor of
labor. Maybe doubts hang in this case but these doubts must be resolved in
favor of labor as mandated by law and our jurisprudence. From the facts of this
case, it is only but reasonable to conclude that complainants service was,
indeed, terminated without legal or valid cause. Where the law protects the
right of employer to validly exercise management prerogative such as to
terminate the services of an employee, such exercise must be with legal cause
as enumerated in Article 282 of the Labor Code or by authorized cause as
defined in Article 283 of the Labor Code.
[15]

The CA affirmed the findings of facts of the NLRC.
We agree with the rulings of the NLRC and the CA. We note that
the company rules do not require that the notice of an employees
absence and the reasons therefor be in writing and for such notice to be
given to any specific office and/or employee of the petitioner. Hence,
the notice may be verbal; it is enough then that an officer or employee
of the petitioner, competent and responsible enough to receive such
notice for and in behalf of the petitioner, was informed of such absence
and the corresponding reason.
The evidence on record shows that the respondent informed the
petitioner of his illness through the company nurse. The security guard
who was dispatched by the petitioner to verify the information received
by the company nurse, confirmed the respondents illness. We find and
so hold that the respondent complied with the requisite of giving notice
of his illness and the reason for his absences to the petitioner.
We reject the petitioners contention that the medical certificates
adduced in evidence by the respondent to prove (a) his illness, the
nature and the duration of the procedures performed by the dentist on
him; and (b) the period during which he was incapacitated to work are
inadmissible in evidence and barren of probative weight simply because
they were not notarized, and the medical certificate dated September
23, 1997 was not written on paper bearing the dentists
letterhead. Neither do we agree with the petitioners argument that
even assuming that the respondent was ill and had been advised by his
dentist to rest, the same does not appear on the medical certificate
dated September 23, 1997; hence, it behooved the respondent to report
for work on September 23, 1997. The ruling of the Court in Maligsa v.
Atty. Cabanting
[16]
is not applicable in this case.
It bears stressing that the petitioner made the same arguments in
the NLRC and the CA, and both tribunals ruled as follows:
First, We concur with the ratiocination of respondent NLRC when it ruled that
a medical certificate need not be notarized, to quote:
xxx. He was dismissed by reason of the fact that the Medical Certificate
submitted by the complainant should not be given credence for not being
notarized and that no affidavit was submitted by the nurse to prove that the
complainant, indeed, called the respondents office by telephone.
After full scrutiny and judicious evaluation of the records of this case, We find
the appeal to be meritorious. Regrettably, the Labor Arbiter a quo clearly
failed to appreciate complainants pieces of evidence. Nowhere in our
jurisprudence requires that all medical certificates be notarized to be accepted
as a valid evidence. In this case, there is [neither] difficulty nor an obstacle to
claim that the medical certificates presented by complainant are genuine and
authentic. Indeed, the physician and the dentist who examined the
complainant, aside from their respective letterheads, had written their
respective license numbers below their names and signatures. These facts have
not been impugned nor rebutted by respondent-appellee throughout the
proceedings of his case. Common sense dictates that an ordinary worker does
not need to have these medical certificates to be notarized for proper
presentation to his company to prove his ailment; hence, the Labor Arbiter a
quo, in cognizance with the liberality and the appreciation on the rules on
evidence, must not negate the acceptance of these medical certificates as valid
pieces of evidence.
We believe, as we ought to hold, that the medical certificates can prove clearly
and convincingly the complainants allegation that he consulted a physician
because of tooth inflammation onSeptember 23, 1997 and a dentist who later
advised him to rest and, thus, clinically extended his tooth extraction due to
severe pain and inflammation. Admittingly, it was only on October 4,
1997 that complainants tooth was finally extracted.

From these disquisitions, it is clear that the absences of private respondent are
justifiable.
[17]

We agree with the NLRC and the appellate court. In light of the
findings of facts of the NLRC and the CA, the petitioner cannot find
solace in the ruling of this Court inMaligsa v. Atty. Cabantnig.
[18]

While the records do not reveal that the respondent filed the
required leave of absence for the period during which he suffered from a
toothache, he immediately reported for work upon recovery, armed with
medical certificates to attest to the cause of his absence. The
respondent could not have anticipated the cause of his illness, thus, to
require prior approval would be unreasonable.
[19]
While it is true that the
petitioner had objected to the veracity of the medical certificates
because of lack of notarization, it has been said that verification of
documents is not necessary in order that the said documents could be
considered as substantial evidence.
[20]
The medical certificates were
properly signed by the physicians; hence, they bear all the earmarks of
regularity in their issuance and are entitled to full probative weight.
[21]

The petitioner, likewise, failed to prove the factual basis for its
dismissal of the respondent on the ground of gross and habitual
negligence under Article 282(b) of the Labor Code of the Philippines, or
even under Section 6.1.1, Rule III of the Company Rules.
Dismissal is the ultimate penalty that can be meted to an
employee. Thus, it must be based on just cause and must be supported
by clear and convincing evidence.
[22]
To effect a valid dismissal, the law
requires not only that there be just and valid cause for termination; it,
likewise, enjoins the employer to afford the employee the opportunity to
be heard and to defend himself.
[23]
Article 282 of the Labor Code
enumerates the just causes for the termination of employment by the
employer:
ART. 282. TERMINATION BY EMPLOYER
An employer may terminate an employment for any of the following causes:
(a) Serious misconduct or willful disobedience by the employee of the
lawful orders of his employer or representative in connection with his work;
(b) Gross and habitual neglect by the employee of his duties.
To warrant removal from service, the negligence should not merely
be gross but also habitual. Gross negligence implies a want or absence
of or failure to exercise slight care or diligence, or the entire absence of
care. It evinces a thoughtless disregard of consequences without
exerting any effort to avoid them.
[24]
The petitioner has not sufficiently
shown that the respondent had willfully disobeyed the company rules
and regulation. The petitioner also failed to prove that the respondent
abandoned his job. The bare fact that the respondent incurred
excusable and unavoidable absences does not amount to an
abandonment of his employment.
The petitioners claim of gross and habitual neglect of duty pales in
comparison to the respondents unblemished record. The respondent
did not incur any intermittent absences. His only recorded absence was
the consecutive ten-day unauthorized absence, albeit due to painful and
unbearable toothache. The petitioners claim that the respondent had
manifested poor work attitude was belied by its own recognition of the
respondents dedication to his job as evidenced by the latters awards:
Top Technician of the Year (1995), Member of the
Exclusive P40,000.00 Club, and Model Employee of the Year (1995).
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED
DUE COURSE. The Decision of the Court of Appeals in CA-G.R. SP
No. 73602 is AFFIRMED.
SO ORDERED.


Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 200792 November 14, 2012
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
NEIL B. COLORADO, Accused-Appellant.
D E C I S I O N
REYES, J.:
For the Court's review is the Decision
1
dated August 19,2011 of the Court of Appeals (CA) in
CA-G.R. CR-HC No. 03767, which affirmed with modification the Decision
2
dated June 19,
2008 in Criminal Case No. 8-390 of the Regional Trial Court ( RTC), Burgos, Pangasinan,
Branch 70 finding herein accused-appellant Neil B. Colorado (Colorado) guilty beyond
reasonable doubt of the crime of rape.
The Facts
Accused-appellant Colorado was charged with the crime of rape in an Information that reads:
That sometime in December, 2002 in the evening in Sitio x x x, Brgy. Iliw-Iliw, Burgos,
Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, being the brother of AAA,
3
inside their house, by means of force, threats and
intimidation did then and there willfully, unlawfully and feloniously have carnal knowledge
with AAA, a twelve (12) years (sic) old girl, against her will and consent, to her damage and
prejudice.
4

Colorado pleaded "not guilty" upon arraignment. During the pre-trial, the parties stipulated on
the following: (1) the existence of the Medico Legal Certificate and the Birth Certificate of
AAA; (2) that Colorado is a full-blood brother of AAA; and (3) that Colorado and AAA lived
under the same roof.
5
After pre-trial, trial on the merits ensued.
Records indicate that AAA was born on October 10, 1990. She was the second to the
youngest in a family of twelve siblings. Colorado was an older brother who lived with her,
their parents and two other brothers, BBB and CCC, in Burgos, Pangasinan.
AAA testified that sometime in December 2002, her parents attended a wedding celebration
somewhere in Hermosa, Dasol, Pangasinan, leaving behind AAA, Colorado and their two
other brothers in the house. When their parents had not yet arrived in the evening, Colorado
committed the dastardly act against AAA. She was twelve (12) years old at that time, while
Colorado was already twenty-four (24) years old. He approached AAA, held her two hands,
even threatened her with a knife and covered her mouth with a handkerchief. He then
removed AAAs shorts and panty, inserted his penis into the young girls vagina, then made a
push and pull movement. AAA tried to resist her brothers sexual aggression, but miserably
failed despite her efforts because of her brothers greater strength. Colorado later left AAA,
who put back her shorts and underwear, but remained awake because of fear and trauma
with what she had gone through.
On that same night, Colorado raped AAA twice more, unmindful of the presence of their two
other brothers who were then sleeping inside the room where Colorado ravished AAA. In
both instances, Colorado still threatened AAA with a knife, removed her shorts and panty,
inserted his penis into his sisters vagina, then performed the push and pull movement.
Colorado warned AAA that he would stab her should she report to anyone what he had
done. AAA then did not dare reveal these incidents to anybody, until she had the courage to
report them to their mother.
Also in her testimony before the trial court, AAA disclosed that she had been raped by
Colorado when she was just nine (9) years old. She also revealed having been ravished on
different dates by another brother, DDD, and a brother-in-law.
A Medico-Legal Certificate
6
prepared by Dr. Ma. Teresa Sanchez (Dr. Sanchez), Medical
Officer III of the Western Pangasinan District Hospital who examined AAA on January 10,
2003, contained the following findings:
=INTERNAL EXAM FINDINGS:
-Nonparous Introitus-
-Hymenal laceration at 6 oclock position with bleeding-
-Vagina admits 2 fingers with slight resistance-
-Uterus small-
-(+) bleeding-
x x x x
7

Colorado testified for his defense. He denied having raped AAA, arguing that he was not
living with AAA in their parents house in December 2002. Allegedly, he was at that time
staying with an older sister in Osmea, Dasol. Colorado claimed that on the night of the
alleged incident, he was fishing with his brother-in-law, and that they returned to Osmea,
Dasol in the morning of the following day.
The Ruling of the RTC
On June 19, 2008, the RTC rendered its decision finding Colorado guilty beyond reasonable
doubt of the crime of qualified rape, and sentencing him to suffer the penalty of reclusion
perpetua. He was also ordered to pay AAA the amount of P50,000.00 as moral damages
and P75,000.00 as civil indemnity. The dispositive portion of its decision reads:
WHEREFORE, in view of the foregoing, this Court finds accused NEIL B. COLORADO,
GUILTY beyond reasonable doubt of the crime of rape. In view of the enactment of Republic
Act [No.] 9346 prohibiting the imposition of death penalty this Court sentences the accused
to suffer the penalty of RECLUSION PERPETUA.
Further, accused shall indemnify [AAA] the amount of Php 50,000.00 as moral damages and
Php 75,000.00 as civil indemnity. (People vs. Ambray, 303 SCRA 709).
SO ORDERED.
8

Feeling aggrieved, Colorado appealed from the RTCs decision to the CA, reiterating in his
appeal the defenses of denial and alibi. He further sought his acquittal by arguing that the
hymenal lacerations discovered by AAAs examining doctor, and considered by the trial court
in determining his culpability, could have been caused not by him, but by the sexual
aggressions committed by their brother DDD or their brother-in-law unto AAA.
The Ruling of the CA
The CA affirmed Colorados conviction, but modified his civil liability. The decretal portion of
its Decision dated August 19, 2011 reads:
WHEREFORE, the appealed Decision of the Regional Trial Court of Burgos, Pangasinan
(Branch 70), dated 19 June 2008, is AFFIRMED with the MODIFICATION that, in addition to
the civil indemnity of Seventy-Five Thousand Pesos (P75,000.00), appellant is ordered to
pay the victim moral damages of Seventy-Five Thousand Pesos (P75,000.00) instead of Fifty
Thousand Pesos (P50,000.00), and to pay exemplary damages of Thirty Thousand Pesos
(P30,000.00).
SO ORDERED.
9

Hence, this appeal. Both Colorado and the Office of the Solicitor General, as counsel for
plaintiff-appellee People of the Philippines, dispensed with the filing with the Court of
supplemental briefs, and adopted instead their respective briefs with the CA.
This Courts Ruling
The appeal lacks merit.
Colorado was charged with the crime of rape, qualified by the victims minority and her
relationship to her ravisher, as defined and penalized under Article 266-A, in relation to
Article 266-B, of the Revised Penal Code (RPC), as follows:
Art. 266-A. Rape; When and How Committed. Rape is committed:
1) By a man who shall have carnal knowledge of a woman under any of the following
circumstances:
a. Through force, threat or intimidation;
b. When the offended party is deprived of reason or otherwise unconscious;
c. By means of fraudulent machination or grave abuse of authority; and
d. When the offended party is under twelve (12) years of age or is demented, even
though none of the circumstances mentioned above be present.
x x x x
Art. 266-B. Penalties. x x x.
x x x x
The death penalty shall also be imposed if the crime of rape is committed with any of the
following aggravating/qualifying circumstances:
1) When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil
degree, or the common-law spouse of the parent of the victim;
x x x x
Both the RTC and the CA correctly ruled on the concurrence of the following elements of
qualified rape, as defined in the aforequoted provisions of the RPC: (1) that the victim is a
female over 12 years but under 18 years of age; (2) that the offender is a parent, ascendant,
stepparent, guardian or relative by consanguinity or affinity within the third civil degree, or the
common-law spouse of the parent of the victim; and (3) that the offender has carnal
knowledge of the victim either through force, threat or intimidation; or when she is deprived
of reason or is otherwise unconscious; or by means of fraudulent machinations or grave
abuse of authority.
10

The age of the victim at the time of the crimes commission is undisputed. During the pre-
trial, the parties agreed on the existence of AAAs Certificate of Live Birth,
11
a "certified
true/xerox copy" of which forms part of the records and provides that AAA was born on
October 10, 1990. AAA was then only 12 years old in December 2002, a significant fact that
was sufficiently alleged in the Information. In People v. Pruna,
12
we held that the best
evidence to prove the age of the offended party is an original or certified true copy of the
certificate of live birth of such party.
As to the second element, there is no dispute that Colorado is a full-blood brother of AAA, as
this was also among the parties stipulated facts during the cases pre-trial.
The grounds now being raised by Colorado to justify his exoneration delve mainly on the
alleged absence of the crimes third element. He denies AAAs claim that he had ravished
her, raising the defense of alibi and the alleged doubt and suspicion that should be ascribed
to AAAs accusations. On this matter, settled is the rule that the findings of the trial court on
the credibility of a witness deserve great weight, given the clear advantage of a trial judge in
the appreciation of testimonial evidence. We have repeatedly recognized that the trial court
is in the best position to assess the credibility of witnesses and their testimonies, because of
its unique opportunity to observe the witnesses first hand and to note their demeanor,
conduct, and attitude under grueling examination. These are significant factors in evaluating
the sincerity of witnesses, in the process of unearthing the truth. The rule finds even more
stringent application where the said findings are sustained by the CA. Thus, except for
compelling reasons, we are doctrinally bound by the trial courts assessment of the credibility
of witnesses.
13

We then take due consideration of the trial courts findings of fact, its assessment of AAAs
credibility, her testimony and the manner by which her statements were relayed, as
discussed in the RTCs Decision convicting Colorado and which reads in part:
AAA testified directly and categorically how she was raped by the accused Neil Colorado
who is her full-blood brother sometime in the night of December 2002.
That while AAA was sleeping with her older brother BBB and her younger brother CCC,
accused went near her and held her two (2) hands, covered her mouth with handkerchief.
Thereafter, accused removed her short pants and underwear, and inserted his penis into her
vagina. After removing his penis, accused went back to sleep.
AAA however could no longer sleep because she was already afraid that the accused will
return which the accused did. For the second time, accused raped AAA. Accused covered
her mouth with a handkerchief, inserted his penis into her vagina and accused did the push
and pull movement.
x x x x
When AAA declares that she has been raped, she says in effect all that would be necessary
to show that rape did take place (PP. vs. Maglantay, 304 SCRA 272), for as long as the
testimony of AAA is free from serious or major incongruence and unbridled by suspicion or
doubt. The testimony of AAA is simple, candid, straightforward and consistent on material
points detailing every single bestial act of her brother in ravishing her. Moreover, AAA on
several occasions (August 1, 2006 and September 19, 2006) was on the verge of crying and
in fact shed tears during her direct examination. Crying of the victim during her testimony is
evidence of the credibility of the rape charge with the verity born out of human nature and
experience (PP. vs. Agustin, 365 SCRA 167; PP vs. Garcia, supra). Though a medical
certificate is not necessary to prove the commission of rape (PP. vs. Bares, 355 SCRA 435),
but when the victims testimony is corroborated by the physicians findings of penetration
(Exh. "A") or hymenal laceration as when the hymen is no longer intact, there is sufficient
foundation to find the existence of the essential requisite of carnal knowledge (PP. vs.
Montejo, 355 SCRA 210; PP. vs. Bation, 305 SCRA 253). Further, no young and decent
woman in her right mind especially of tender age as that of AAA who is fifteen (15) years old
would concoct a story of defloration, allow an examination of her private parts and thereafter
pervert herself by being subjected to a public trial, if she was not motivated solely by her
desire to obtain justice for the wrong committed against her. (PP. vs. Albior, 352 SCRA 35;
PP. vs. Vidal, 353 SCRA 194)
14
(Emphasis ours)
These observations were affirmed by the CA on appeal, as it held:
A conscientious review of the records shows that AAAs testimonies in this case bear the
marks of truthfulness, spontaneity and sincerity. She was crying while answering questions
about the rape incident. Obviously, the process called to her mind not only the mere details
of the sexual abuse but the lingering hurt and pain that come with it. Her tears were
unimpeachable testaments to the truth of her allegations.
x x x x
During cross-examination, AAA remained steadfast, unwavering and spontaneous.
Significantly also, her testimony is supported by the medical evidence on record, which
showed that she had a laceration in her hymen and was thus in a non-virgin
state.
15
(Citations omitted and emphasis ours)
The Court finds no cogent reasons to overturn these findings. Indeed, it was established that
Colorado succeeded in having carnal knowledge of the victim, employing force, threat and
intimidation that allowed him to consummate his bestial act. AAA had positively identified
Colorado as her rapist. Such identification of Colorado could not have been difficult for AAA
considering that Colorado was a brother who lived with her in their parents house. Even the
failure of AAA to identify the exact date of the crimes commission is inconsequential to
Colorados conviction. In rape cases, the date of commission is not an essential element of
the offense; what is material is its occurrence,
16
a fact that was sufficiently established given
AAAs and her testimonys credibility.
Contrary to Colorados contention, AAAs claim that two other siblings were sleeping in the
same room where she was raped did not render her statements incredible. Time and again,
we have taken into consideration how rapists are not deterred by the presence of people
nearby, such as the members of their own family inside the same room, with the likelihood of
being discovered, since lust respects no time, locale or circumstance.
17

As against AAAs credible testimony, Colorados defenses lack persuasion.1wphi1 While Colorado
denied in his testimony that he lived with AAA, such fact was already admitted by the parties
during the pre-trial. His defense that he was in Osmea, Dasol at the time of the crimes
commission was even uncorroborated by any other witness. By jurisprudence, denial is an
intrinsically weak defense which must be buttressed by strong evidence of non-culpability to
merit credibility. Mere denial, without any strong evidence to support it, can scarcely
overcome the positive declaration by the child-victim of the identity of the appellant and his
involvement in the crime attributed to him.
18
Moreover, for the defense of alibi to prosper, two
requisites must concur: first, the appellant was at a different place at the time the crime was
committed; and second, it was physically impossible for him to be at the crime scene at the
time of its commission.
19
The defense failed to establish these requisites. On the contrary,
Colorado testified that from Osmea, where he claimed to have lived with an older sister, he
could normally reach his parents house by a three-hour walk. There were also other means
of transportation in these two places,
20
which then could have allowed Colorado to travel the
distance over a shorter period of time.
Colorado also questions the weight of Dr. Sanchezs medico-legal certificate, arguing that
AAAs hymenal lacerations could have resulted from the sexual aggressions allegedly
committed against her by DDD and their brother-in-law. Such contention, however, deserves
no consideration, given that results of an offended partys medical examination are merely
corroborative in character. As explained by the Court in People v. Balonzo,
21
a medical
certificate is not necessary to prove the commission of rape, as even a medical examination
of the victim is not indispensable in a prosecution for rape. Expert testimony is merely
corroborative in character and not essential to conviction. An accused can still be convicted
of rape on the basis of the sole testimony of the private complainant.
22
Furthermore,
laceration of the hymen, even if considered the most telling and irrefutable physical evidence
of sexual assault, is not always essential to establish the consummation of the crime of rape.
In the context that is used in the RPC, "carnal knowledge," unlike its ordinary connotation of
sexual intercourse, does not necessarily require that the vagina be penetrated or that the
hymen be ruptured.
23
Thus, even granting that AAAs lacerations were not caused by
Colorado, the latter could still be declared guilty of rape, after it was established that he
succeeded in having carnal knowledge of the victim.
Given the foregoing, the CA did not err in affirming the trial court's conviction of Colorado.
The crime is qualified by the victim's minority and her relationship to Colorado, yet the
appellate court correctly explained that the imposable penalty is reclusion pe1petua, in lieu of
death, taking into account the provisions of Republic Act (R.A.) No. 9346 that prohibit the
imposition of death penalty in criminal cases. We however clarify that Colorado shall be
ineligible for parole, a requirement under Section 3 of R.A. No. 9346 that was not mentioned
in the assailed CA decision and which, must then be rectified by this Decision.
24
The civil
indemnity, moral damages and exemplary damages, as modified and awarded by the CA,
conform to prevailing jurisprudence.
WHEREFORE, in view of the foregoing, the Decision dated August 19, 2011 of the Com1 of
Appeals in CA-G.R. CR-HC No. 03767 is AFFIRMED with MODIFICATION in that accused-
appellant Neil B. Colorado is sentenced to suffer the penalty of reclusion pe1petua, without
eligibility for parole. The accused is likewise ordered to pay legal interest on all damages
awarded at the legal rate of 6% from the date of finality of this Decision until fully satisfied.
SO ORDERED.
.,/#+0* ' 1/$2$+

Facts:
1. Due to her lumbar pains, private respondent Editha Sioson went to Rizal Medical Center
(RMC) for check-up on February 1995.
2. Sometime in 1999, due to the same problem, she was referred to Dr. Pedro Lantin III of
RMC who, accordingly, ordered several diagnostic laboratory tests. She underwent kidney
operation after the tests revealed that her left kidney is non-functioning and non-visualizing.
3. Private respondents husband Romeo Sioson then filed a complaint for gross negligence
and/or incompetence before the Board of Medicine for the removal of Edithas fully
functional right kidney, instead of the left, against the doctors who allegedly participated in
the kidney operation, namely: Dr. Judd dela Vega, Dr. Pedro Lantin, III, Dr. Gerardo Antonio
Florendo and petitioner Rico Rommel Atienza.
4. After Romeo Sioson presented his evidence, Editha filed her formal offer of documentary
evidence, which consisted of certified photocopies of X-Ray request forms where
interpretation of the ultrasound results were written, for the purpose of proving that her
kidneys were both in their proper anatomical locations at the time she was operated.
5. Petitioner filed his comments/objections to Edithas formal offer of exhibits, alleging that
said exhibits are inadmissible because the same are mere photocopies, not properly
identified and authenticated, intended to establish matters which are hearsay, and
incompetent to prove the purpose for which they are offered.
6. The formal offer of documentary exhibits of private respondent was admitted by the BOM.
Petitioner moved for reconsideration of the Order, which was denied on the ground that
BOM should first admit the evidence being offered so that it can determine its probative
value when it decides the case, and later on determine whether the evidence is relevant or
not.
7. Disagreeing with the BOM, Atienza filed a petition for certiorari with the CA. The CA
dismissed the petition for certiorari for lack of merit. Hence, the present petition for review
on certiorari.
Issue:
W/N the exhibits are inadmissible in evidence
Held:
No. Petition denied. To begin with, it is well-settled that the rules of evidence are not strictly
applied in proceedings before administrative bodies such as the BOM. Although trial courts
are enjoined to observe strict enforcement of the rules of evidence, in connection with
evidence which may appear to be of doubtful relevancy, incompetency, or admissibility, we
have held that, it is the safest policy to be liberal, not rejecting them on doubtful or technical
grounds, but admitting them unless plainly irrelevant, immaterial or incompetent, for the
reason that their rejection places them beyond the consideration of the court, if they are
thereafter found relevant or competent; on the other hand, their admission, if they turn out
later to be irrelevant or incompetent, can easily be remedied by completely discarding them
or ignoring them.
Admissibility of evidence refers to the question of whether or not the circumstance (or
evidence) is to be considered at all. On the other hand, the probative value of evidence refers
to the question of whether or not it proves an issue.
Second, petitioners insistence that the admission of Edithas exhibits violated his substantive
rights leading to the loss of his medical license is misplaced in light of Section 20, Article I of
the Professional Regulation Commission Rules of Procedure. As pointed out by the appellate
court, the admission of the exhibits did not prejudice the substantive rights of petitioner
because, at any rate, the fact sought to be proved thereby, that the two kidneys of Editha were
in their proper anatomical locations at the time she was operated on, is presumed under
Section 3, Rule 131 of the Rules of Court on Disputable presumptions.
The exhibits are certified photocopies of X-ray Request Forms filed in connection with
Edithas medical case, which contained handwritten entries interpreting the results of the
examination. The fact sought to be established by the admission of Edithas exhibits, that her
kidneys were both in their proper anatomical locations at the time of her operation, need
not be proved as it is covered by mandatory judicial notice. These exhibits do not constitute
hearsay evidence of the anatomical locations of Edithas kidneys because the position and
removal may still be established through a belated ultrasound or x-ray of her abdominal area.
Contrary to the assertion of petitioner, the best evidence rule is also inapplicable. Section 3 of
Rule 130 provides:
1. Best Evidence Rule
Sec. 3. Original document must be produced; exceptions. When the subject of inquiry is the
contents of a document, no evidence shall be admissible other than the original document
itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court, without bad
faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;
(c) When the original consists of numerous accounts or other documents which cannot be
examined in court
without great loss of time and the fact sought to be established from them is only the general
result of the whole; and
(d) When the original is a public record in the custody of a public officer or is recorded in a
public office.
The subject of inquiry in this case is whether respondent doctors before the BOM are liable
for gross negligence in removing the right functioning kidney of Editha instead of the left
non-functioning kidney, not the proper anatomical locations of Edithas kidneys. As
previously discussed, the proper anatomical locations of Edithas kidneys at the time of her
operation at the RMC may be established not only through the exhibits offered in evidence.
In fact, the introduction of secondary evidence, such as copies of the exhibits, is allowed,
especially as one of the witnesses testified that the Records Office of RMC no longer had the
originals of the exhibits because [it] transferred from the previous building, x x x to the new
building and ultimately, the originals cannot be produced.
EN BANC
[G.R. Nos. 96027-28. March 08, 2005]
BRIG. GEN. LUTHER A. CUSTODIO
*
, CAPT. ROMEO M.
BAUTISTA, 2
nd
LT. JESUS D. CASTRO, SGT. CLARO L.
LAT, SGT. ARNULFO B. DE MESA, C1C ROGELIO B.
MORENO, C1C MARIO E. LAZAGA, SGT. FILOMENO D.
MIRANDA, SGT. ROLANDO C. DE GUZMAN, SGT.
ERNESTO M. MATEO, SGT. RODOLFO M.
DESOLONG, A1C CORDOVA G. ESTELO, MSGT. PABLO S.
MARTINEZ, SGT. RUBEN AQUINO, SGT. ARNULFO
ARTATES, A1C FELIZARDO TARAN, petitioners, vs.
SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES, respondents.
R E S O L U T I O N
PUNO, J.:
Before us is a Motion To Re-Open Case With Leave Of Court filed
by petitioners who were convicted and sentenced to reclusion
perpetua by the Sandiganbayan in Criminal Cases Nos. 10010 and
10011 for the double murder of Senator Benigno Aquino, Jr. and
Rolando Galman on August 21, 1983.
[1]

Petitioners were members of the military who acted as Senator
Aquinos security detail upon his arrival in Manila from his three-year
sojourn in the United States. They were charged, together with several
other members of the military, before the Sandiganbayan for the killing
of Senator Aquino who was fatally shot as he was coming down from
the aircraft of China Airlines at the Manila International
Airport. Petitioners were also indicted for the killing of Rolando Galman
who was also gunned down at the airport tarmac.
On December 2, 1985, the Sandiganbayan rendered a Decision in
Criminal Cases Nos. 10010-10011 acquitting all the accused, which
include the petitioners. However, the proceedings before the
Sandiganbayan were later found by this Court to be a sham trial. The
Court thus nullified said proceedings, as well as the judgment of
acquittal, and ordered a re-trial of the cases.
[2]

A re-trial ensued before the Sandiganbayan.
In its decision dated September 28, 1990, the Sandiganbayan, while
acquitting the other accused, found the petitioners guilty as principals of
the crime of murder in both Criminal Cases Nos. 10010 and 10011. It
sentenced them to reclusion perpetua in each case.
[3]
The judgment
became final after this Court denied petitioners petition for review of the
Sandiganbayan decision for failure to show reversible error in the
questioned decision,
[4]
as well as their subsequent motion for
reconsideration.
[5]

In August 2004, petitioners sought legal assistance from the Chief
Public Attorney who, in turn, requested the Independent Forensic Group
of the University of the Philippines to make a thorough review of the
forensic evidence in the double murder case. The petitioners, assisted
by the Public Attorneys Office, now want to present the findings of the
forensic group to this Court and ask the Court to allow the re-opening of
the cases and the holding of a third trial to determine the circumstances
surrounding the death of Senator Benigno Aquino, Jr. and Rolando
Galman.
Petitioners invoke the following grounds for the re-opening of the
case:
I
Existence of newly discovered pieces of evidence that were not available
during the second trial of the above-entitled cases which could have altered the
judgment of the Sandiganbayan, specifically:
A) Independent forensic evidence uncovering the false forensic claims
that led to the unjust conviction of the petitioners-movants.
B) A key defense eyewitness to the actual killing of Senator Benigno Aquino,
Jr.
II
There was a grave violation of due process by reason of:
A) Insufficient legal assistance of counsel;
B) Deprivation of right to counsel of choice;
C) Testimonies of defense witnesses were under duress;
D) Willful suppression of evidence;
E) Use of false forensic evidence that led to the unjust conviction of
the petitioners-movants.
III
There was serious misapprehension of facts on the part of the Sandiganbayan
based on false forensic evidence, which entitles petitioners-movants to a re-
trial.
[6]

Petitioners seek to present as new evidence the findings of the
forensic group composed of Prof. Jerome B. Bailen, a forensic
anthropologist from the University of the Philippines, Atty. Erwin P. Erfe,
M.D., a medico-legal practitioner, Benito E. Molino, M.D., a forensic
consultant and Human Rights and Peace Advocate, and Anastacio N.
Rosete, Jr., D.M.D., a forensic dentistry consultant. Their report
essentially concludes that it was not possible, based on the forensic
study of the evidence in the double murder case, that C1C Rogelio
Moreno fired at Senator Aquino as they descended the service stairway
from the aircraft. They posit that Senator Aquino was shot while he was
walking on the airport tarmac toward the waiting AVSECOM van which
was supposed to transport him from the airport to Fort Bonifacio. This is
contrary to the finding of the Sandiganbayan in the second trial that it
was C1C Moreno, the security escort positioned behind Senator Aquino,
who shot the latter. The report also suggests that the physical evidence
in these cases may have been misinterpreted and manipulated to
mislead the court. Thus, petitioners assert that the September 28, 1990
decision of the Sandiganbayan should be voided as it was based on
false forensic evidence. Petitioners submit that the review by the
forensic group of the physical evidence in the double murder case
constitutes newly discovered evidence which would entitle them to a
new trial under Rule 121 of the 2000 Rules of Criminal Procedure. In
addition to the report of the forensic group, petitioners seek to present
the testimony of an alleged eyewitness, the driver of the waiting
AVSECOM van, SPO4 Ruben M. Cantimbuhan. In his affidavit
submitted to this Court, SPO4 Cantimbuhan states that he saw a man in
blue uniform similar to that of the Philippine Airlines maintenance crew,
suddenly fire at Senator Aquino as the latter was about to board the
van. The man in blue was later identified as Rolando Galman.
Petitioners pray that the Court issue a resolution:
1. [a]nnulling and setting aside this Honorable Courts Resolutions dated July
23, 1991 and September 10, 1991;
2. [a]nnulling and setting aside the Decision of the Sandiganbayan
(3
rd
Division) dated September 28, 1990 in People vs. Custodio, et al., Case
No. 10010-10011[;]
3. [o]rdering the re-opening of this case; [and]
4. [o]rdering the Sandiganbayan to allow the reception of additional defense
evidence/re-trial in the above entitled cases.
[7]

The issue now is whether petitioners are entitled to a third
trial under Rule 121 of the 2000 Rules of Criminal Procedure.
The pertinent sections of Rule 121 of the 2000 Rules of Criminal
Procedure provide:
Section 1. New Trial or reconsideration. At any time before a judgment of
conviction becomes final, the court may, on motion of the accused or at its own
instance but with the consent of the accused, grant a new trial or
reconsideration.
Sec. 2. Grounds for a new trial. The court shall grant a new trial on any of
the following grounds:
(a) That errors of law or irregularities prejudicial to the substantial rights of
the accused have been committed during the trial;
(b) That new and material evidence has been discovered which the
accused could not with reasonable diligence have discovered and produced
at the trial and which if introduced and admitted would probably change
the judgment.
xxx
Sec. 6. Effects of granting a new trial or reconsideration. The effects of
granting a new trial or reconsideration are the following:
(a) When a new trial is granted on the ground of errors of law or
irregularities committed during the trial, all the proceedings and evidence
affected thereby shall be set aside and taken anew. The court may, in the
interest of justice, allow the introduction of additional evidence.
(b) When a new trial is granted on the ground of newly discovered evidence,
the evidence already adduced shall stand and the newly-discovered and such
other evidence as the court may, in the interest of justice, allow to be
introduced shall be taken and considered together with the evidence already in
the record.
(c) In all cases, when the court grants new trial or reconsideration, the
original judgment shall be set aside or vacated and a new judgment rendered
accordingly. (emphasis supplied)
In line with the objective of the Rules of Court to set guidelines in the
dispensation of justice, but without shackling the hands that dispense it,
the remedy of new trial has been described as a new invention to
temper the severity of a judgment or prevent the failure of
justice.
[8]
Thus, the Rules allow the courts to grant a new trial when
there are errors of law or irregularities prejudicial to the substantial
rights of the accused committed during the trial, or when there exists
newly discovered evidence. In the proceedings for new trial, the errors
of law or irregularities are expunged from the record or new evidence is
introduced. Thereafter, the original judgment is vacated and a new one
is rendered.
[9]

Under the Rules, a person convicted of a crime may avail of the
remedy of new trial before the judgment of conviction becomes
final. Petitioners admit that the decision of the Sandiganbayan in
Criminal Cases Nos. 10010 and 10011 became final and executory
upon denial of their petition for review filed before this Court and their
motion for reconsideration. Entry of judgment has in fact been made on
September 30, 1991.
[10]
Nonetheless, they maintain that equitable
considerations exist in this case to justify the relaxation of the Rules and
re-open the case to accord petitioners the opportunity to present
evidence that will exonerate them from the charges against them. We
do not find merit in their submission.
Petitioners anchor their motion on the ground of newly discovered
evidence. Courts are generally reluctant in granting motions for new
trial on the ground of newly discovered evidence for it is presumed that
the moving party has had ample opportunity to prepare his case
carefully and to secure all the necessary evidence before the trial. Such
motions are treated with great caution due to the danger of perjury
and the manifest injustice of allowing a party to allege that which may
be the consequence of his own neglect to defeat an adverse
judgment. Hence, the moving party is often required to rebut a
presumption that the judgment is correct and that there has been a lack
of due diligence, and to establish other facts essential to warrant the
granting of a new trial on the ground of newly discovered
evidence.
[11]
This Court has repeatedly held that before a new trial may
be granted on the ground of newly discovered evidence, it must be
shown (1) that the evidence was discovered after trial; (2) that such
evidence could not have been discovered and produced at the trial even
with the exercise of reasonable diligence; (3) that it is material, not
merely cumulative, corroborative, or impeaching; and (4) the evidence is
of such weight that it would probably change the judgment if admitted. If
the alleged newly discovered evidence could have been very well
presented during the trial with the exercise of reasonable diligence, the
same cannot be considered newly discovered.
[12]

These standards, also known as the Berry rule, trace their origin
to the 1851 case of Berry vs. State of Georgia
[13]
where the Supreme
Court of Georgia held:
Applications for new trial on account of newly discovered evidence, are not
favored by the Courts. x x x Upon the following points there seems to be a
pretty general concurrence of authority, viz; that it is incumbent on a party who
asks for a new trial, on the ground of newly discovered evidence, to satisfy the
Court, 1
st
. That the evidence has come to his knowledge since the trial. 2d. That
it was not owing to the want of due diligence that it did not come sooner. 3d.
That it is so material that it would produce a different verdict, if the new trial
were granted. 4
th
. That it is not cumulative only viz; speaking to facts, in
relation to which there was evidence on the trial. 5
th
. That the affidavit of the
witness himself should be produced, or its absence accounted for. And 6
th
, a
new trial will not be granted, if the only object of the testimony is to impeach
the character or credit of a witness. (citations omitted)
These guidelines have since been followed by our courts in
determining the propriety of motions for new trial based on newly
discovered evidence.
It should be emphasized that the applicant for new trial has
the burden of showing that the new evidence he seeks to present has
complied with the requisites to justify the holding of a new trial.
The threshold question in resolving a motion for new trial based on
newly discovered evidence is whether the proferred evidence is in fact a
newly discovered evidence which could not have been discovered by
due diligence. The question of whether evidence is newly
discovered has two aspects: a temporal one, i.e., when was the
evidence discovered, and a predictive one, i.e., when should or could it
have been discovered. It is to the latter that the requirement of due
diligence has relevance.
[14]
We have held that in order that a particular
piece of evidence may be properly regarded as newly discovered to
justify new trial, what is essential is not so much the time when the
evidence offered first sprang into existence nor the time when it first
came to the knowledge of the party now submitting it; what is essential
is that the offering party had exercised reasonable diligence in seeking
to locate such evidence before or during trial but had nonetheless failed
to secure it.
[15]

The Rules do not give an exact definition of due diligence, and
whether the movant has exercised due diligence depends upon the
particular circumstances of each case.
[16]
Nonetheless, it has been
observed that the phrase is often equated with reasonable promptness
to avoid prejudice to the defendant. In other words, the concept of due
diligence has both a time component and a good faith
component. The movant for a new trial must not only act in a timely
fashion in gathering evidence in support of the motion; he must act
reasonably and in good faith as well. Due diligence contemplates that
the defendant acts reasonably and in good faith to obtain the evidence,
in light of the totality of the circumstances and the facts known to him.
[17]

Applying the foregoing tests, we find that petitioners purported
evidence does not qualify as newly discovered evidence that would
justify the re-opening of the case and the holding of a third trial.
The report of the forensic group may not be considered as newly
discovered evidence as petitioners failed to show that it was impossible
for them to secure an independent forensic study of the physical
evidence during the trial of the double murder case. It appears from
their report that the forensic group used the same physical and
testimonial evidence proferred during the trial, but made their own
analysis and interpretation of said evidence. They cited the
materials and methods that they used for their study, viz:
MATERIALS AND METHODS
MATERIALS:
a. Court records of the case, especially photographs of: a) the stairway
where the late Sen. Aquino and his escorts descended; b) the part of
the tarmac where the lifeless bodies of the late Sen. Aquino and
Galman fell; and c) the autopsy conducted by the NBI Medico-legal
team headed by Dr. Mu[]oz; and the autopsy report of the late Sen.
Benigno Aquino[,] Jr. signed by Dr. Mu[]oz and Dr. Solis;
b. The gun and live ammunitions collected at the crime scene;
c. A reference human skull photos and X-rays of the same to
demonstrate wound location and bullet trajectory;
d. The reports of interviews and statements by the convicted military
escorts, and other witnesses;
e. Re-enactment of the killing of Aquino based on the military escorts[]
version, by the military escorts themselves in the Bilibid Prison and by
volunteers at the NAIA Tarmac;
f. Various books and articles on forensic and the medico-legal field[;]
g. Results of Forensic experiments conducted in relation to the case.
METHODS:
a. Review of the forensic exhibits presented in the court;
b. Review of TSNs relevant to the forensic review;
c. Study of and research on the guns, slugs and ammunitions allegedly
involved in the crime;
d. Interviews/re-enactment of the crime based on the militarys accounts,
both in the Bilibid Prison where the convicts are confined and the MIA
(now NAIA) stairway and tarmac;
e. Conduct of ocular inspection and measurements on the actual crime
scene (stairway and tarmac) at the old Manila International Airport
(now NAIA);
f. Retracing the slugs trajectory based on the autopsy reports and
experts testimonies using an actual human skull;
g. X-rays of the skull with the retraced trajectory based on the autopsy
report and experts testimonies;
h. Evaluation of the presented facts and opinions of local experts in
relation to accepted forensic findings in international publications on
forensic science, particularly on guns and [gunshot] wound injuries;
i. Forensic experiments and simulations of events in relation to this
case.
[18]

These materials were available to the parties during the trial and
there was nothing that prevented the petitioners from using them at the
time to support their theory that it was not the military, but Rolando
Galman, who killed Senator Aquino. Petitioners, in their present motion,
failed to present any new forensic evidence that could not have been
obtained by the defense at the time of the trial even with the exercise of
due diligence. If they really wanted to seek and offer the opinion of
other forensic experts at the time regarding the physical evidence
gathered at the scene of the crime, there was ample opportunity for
them to do so before the case was finally submitted and decided.
[19]

A reading of the Sandiganbayan decision dated September 28, 1990
shows a thorough study by the court of the forensic evidence presented
during the trial, viz:
COURT FINDINGS
As to the physical
evidence
Great significance has to be accorded the trajectory of the single bullet that
penetrated the head and caused the death of Sen. Benigno Aquino, Jr. Basic to
the question as to trajectory ought to be the findings during the autopsy. The
prosector in the autopsy, Dr. Bienvenido Muoz, NBI Medico-Legal Officer,
reported in his Autopsy Report No. N-83-22-36, that the trajectory of the
gunshot, the wound of entrance having been located at the mastoid region, left,
below the external auditory meatus, and the exit wound having been at the
anterior portion of the mandible, was forward, downward and
medially. (Autopsy Report No. N-83-22-36, Exhibit NNNN-2-t-2)
A controversy as to this trajectory came about when, upon being cross-
examined by counsel for the defense, Dr. Bienvenido Muoz made a significant
turn-about by stating that the correct trajectory of the fatal bullet was upward,
downward, and medially. The present position of Dr. Muoz is premised
upon the alleged fact that he found the petrous bone fractured, obviously hit by
the fatal bullet. He concluded, in view of this finding, that the fatal bullet must
have gone upward from the wound of entrance. Since the fatal bullet exited at
the mandible, it is his belief that the petrous bone deflected the trajectory of the
bullet and, thus, the bullet proceeded downwards from the petrous bone to the
mandible.
This opinion of Dr. Bienvenido Muoz in this regard notwithstanding, We hold
that the trajectory of the fatal bullet which killed Sen. Benigno Aquino, Jr. was,
indeed, forward, downward and medially. For the reason that the wound of
entrance was at a higher elevation than the wound of exit, there can be no other
conclusion but that the trajectory was downward. The bullet when traveling at a
fast rate of speed takes a straight path from the wound of entrance to the wound
of exit. It is unthinkable that the bullet, while projected upwards, would,
instead of exiting to the roof of the head, go down to the mandible because it
was allegedly deflected by a petrous bone which though hard is in fact a mere
spongy protuberance, akin to a cartilage.
Clear is proof of the downward trajectory of the fatal bullet; First, as Dr. Pedro
Solis and Dr. Ceferino Cunanan, the immediate superiors of Dr. Bienvenido
Muoz, manifested before the Court, that, since the wound of entrance
appeared ovaloid and there is what is known as a contusion collar which was
widest at the superior portion, indicating an acute angle of approach, a
downward trajectory of the bullet is indicated. This phenomenon indicates that
the muzzle of the fatal gun was at a level higher than that of the point of entry
of the fatal bullet.
There was no showing as to whether a probe could have been made from the
wound of entrance to the petrous bone. Out of curiosity, Dr. Juanito Billote
tried to insert a probe from the wound of exit into the petrous bone. He was
unsuccessful notwithstanding four or five attempts. If at all, this disproves the
theory of Dr. Muoz that the trajectory was upward, downward and
medially. On the other hand, Dr. Juanito Billote and photographer Alexander
Loinaz witnessed the fact that Dr. Muoz[s] understudy, Alejandrino Javier,
had successfully made a probe from the wound of entrance directly towards the
wound of exit. Alejandrino Javier shouted with excitement upon his success
and Alexander Loinaz promptly photographed this event with Alejandrino
Javier holding the protruding end of the probe at the mandible. (Exhibit
XXXXX-39-A)
To be sure, had the main bullet hit the petrous bone, this spongy mash of
cartilage would have been decimated or obliterated. The fact that the main
bullet was of such force, power and speed that it was able to bore a hole into
the mandible and crack it, is an indication that it could not have been stopped or
deflected by a mere petrous bone. By its power and force, it must have been
propelled by a powerful gun. It would have been impossible for the main bullet
to have been deflected form an upward course by a mere spongy protuberance.
Granting that it was so deflected, however, it could not have maintained the
same power and force as when it entered the skull at the mastoid region so as to
crack the mandible and make its exit there.
But what caused the fracture of the petrous bone? Was there a cause of the
fracture, other than that the bullet had hit it? Dr. Pedro Solis, maintaining the
conclusion that the trajectory of the bullet was downward, gave the following
alternative explanations for the fracture of the petrous bone:
First, the petrous bone could have been hit by a splinter of the main bullet,
particularly, that which was found at the temporal region; and,
Second, the fracture must have been caused by the kinetic force applied to the
point of entrance at the mastoid region which had the tendency of being
radiated towards the petrous bone.
Thus, the fracture in the occipital bone, of the temporal bone, and of the
parietal bone, Dr. Pedro Solis pointed out, had been caused by the aforesaid
kinetic force. When a force is applied to the mastoid region of the head, Dr.
Pedro Solis emphasized, a radiation of forces is distributed all over the cranial
back, including, although not limited to, the parietal bone. The skull, Dr. Solis
explains, is a box-like structure. The moment you apply pressure on the
portion, a distortion, tension or some other mechanical defect is caused. This
radiation of forces produces what is known as the spider web linear fracture
which goes to different parts of the body. The so-called fracturing of the
petrous portion of the left temporal bone is one of the consequences of the
kinetic force forcefully applied to the mastoid region.
The fact that there was found a fracture of the petrous bone is not necessarily
indicative of the theory that the main bullet passed through the petrous bone.
Doubt was expressed by Dr. Pedro Solis as to whether the metal fragments
alleged by Dr. Bienvenido Muoz to have been found by him inside the skull or
at the wound of exit were really parts of the main bullet which killed the
Senator. When Dr. Pedro Solis examined these fragments, he found that two (2)
of the fragments were larger in size, and were of such shapes, that they could
not have gone out of the wound of exit considering the size and shape of the
exit wound.
Finding of a downward
trajectory of the
fatal bullet fatal
to the credibility
of defense witnesses.
The finding that the fatal bullet which killed Sen. Benigno Aquino, Jr. was
directed downwards sustains the allegation of prosecution eyewitnesses to the
effect that Sen. Benigno Aquino, Jr. was shot by a military soldier at the bridge
stairs while he was being brought down from the plane. Rebecca Quijano saw
that the senator was shot by the military man who was directly behind the
Senator while the Senator and he were descending the stairs. Rebecca
Quijanos testimony in this regard is echoed by Jessie Barcelona, Ramon
Balang, Olivia Antimano, and Mario Laher, whose testimonies this Court finds
likewise as credible.
The downward trajectory of the bullet having been established, it stands to
reason that the gun used in shooting the Senator was fired from an elevation
higher than that of the wound of entrance at the back of the head of the
Senator. This is consistent with the testimony of prosecution witnesses to the
effect that the actual killer of the Senator shot as he stood at the upper step of
the stairs, the second or third behind Senator Aquino, while Senator Aquino
and the military soldiers bringing him were at the bridge stairs. This is likewise
consistent with the statement of Sandra Jean Burton that the shooting of
Senator Aquino occurred while the Senator was still on the bridge stairs, a
conclusion derived from the fact that the fatal shot was fired ten (10) seconds
after Senator Aquino crossed the service door and was led down the bridge
stairs.
It was the expert finding of Dr. Matsumi Suzuki that, as was gauged from the
sounds of the footsteps of Senator Aquino, as the Senator went down the bridge
stairs, the shooting of the Senator occurred while the Senator had stepped on
the 11
th
step from the top.
At the ocular inspection conducted by this Court, with the prosecution and the
defense in attendance, it should be noted that the following facts were
established as regards the bridge stairs:
Observations:
The length of one block covering the tarmac 196;
The width of one block covering the tarmac 10;
The distance from the base of the staircase leading to the
emergency tube to the Ninoy marker at the tarmac 126;
There are 20 steps in the staircase including the landing;
The distance from the first rung of the stairway up to the 20
th
rung
which is the landing of stairs 208;
Distance from the first rung of the stairway up to the 20
th
rung until
the edge of the exit door 2311;
Distance from the 4
th
rung up to the exit door 21;
Distance from the 5
th
rung up to the exit door 1911;
Length of one rung including railpost 34;
Space between two rungs of stairway 9;
Width of each rung 11-1/2;
Length of each rung (end to end) 29:
Height of railpost from edge of rung to railing 25.
(underlining supplied)
[20]

The Sandiganbayan again exhaustively analyzed and discussed the
forensic evidence in its resolution dated November 15, 1990 denying
the motion for reconsideration filed by the convicted accused. The court
held:
The Autopsy Report No. N-83-2236, Exhibit NNNN-2-t-2 indicated a
downward trajectory of the fatal bullet when it stated that the fatal bullet was
forward, downward, and medially . . .
xxx
II
The wound of entrance having been at a higher elevation than the wound of
exit, there can be no other conclusion but that the trajectory was
downward. The fatal bullet, whether it be a Smith and Wesson Caliber .357
magnum revolver or a .45 caliber, must have traveled at a fast rate of speed and
it stands to reason that it took a straight path from the wound of entrance to the
wound of exit. A hole indicating this straight path was proven to have
existed. If, as contended on cross-examination by Dr. Bienvenido Muoz, that
the bullet was projected upwards, it ought to have exited at the roof of the
head. The theory that the fatal bullet was deflected by a mere petrous bone is
inconceivable.
III
Since the wound of entrance appeared ovaloid and there is what is known as a
contusion collar which was widest at the superior portion, indicating an acute
angle of approach, a downward trajectory of the fatal bullet is conclusively
indicated. This phenomenon indicates that the muzzle of the fatal gun was at a
level higher than that of the point of entry of the fatal bullet.
IV
There was no hole from the petrous bone to the mandible where the fatal bullet
had exited and, thus, there is no support to the theory of Dr. Bienvenido Muoz
that the fatal bullet had hit the petrous bone on an upward trajectory and had
been deflected by the petrous bone towards the mandible. Dr. Juanito Billotes
testimony in this regard had amplified the matter with clarity.
xxx
These physical facts, notwithstanding the arguments and protestations of
counsel for the defense as now and heretofore avowed, compel the Court to
maintain the holding: (1) that the trajectory of the fatal bullet which hit and
killed Senator Benigno Aquino, Jr. was forward, downward and
medially; (2) that the Senator was shot by a person who stood at a higher
elevation than he; and (3) that the Senator was shot and killed by CIC Rogelio
Moreno on the bridge stairs and not on the tarmac, in conspiracy with the rest
of the accused convicted herein.
[21]

This Court affirmed said findings of the Sandiganbayan when it
denied the petition for review in its resolution of July 25, 1991. The
Court ruled:
The Court has carefully considered and deliberated upon all the contentions of
the petitioners but finds no basis for the allegation that the respondent
Sandiganbayan has gravely erred in resolving the factual issues.
The attempt to place a constitutional dimension in the petition is a labor in
vain. Basically, only questions of fact are raised. Not only is it axiomatic that
the factual findings of the Sandiganbayan are final unless they fall within
specifically recognized exceptions to the rule but from the petition and its
annexes alone, it is readily apparent that the respondent Court correctly
resolved the factual issues.
xxx
The trajectory of the fatal bullet, whether or not the victim was descending the
stairway or was on the tarmac when shot, the circumstances showing
conspiracy, the participants in the conspiracy, the individual roles of the
accused and their respective parts in the conspiracy, the absence of evidence
against thirteen accused and their co-accused Col. Vicente B. Tigas, Jr., the
lack of credibility of the witnesses against former Minister Jose D. Aspiras,
Director Jesus Z. Singson, Col. Arturo A. Custodio, Hermilo Gosuico, Major
General Prospero Olivas, and the shooting of Rolando Galman are all factual
matters w[h]ich the respondent court discussed with fairness and at length. The
petitioners insistence that a few witnesses in their favor should be believed
while that of some witnesses against them should be discredited goes into the
question of credibility of witnesses, a matter which under the records of this
petition is best left to the judgment of the Sandiganbayan.
[22]

The report of the forensic group essentially reiterates the
theory presented by the defense during the trial of the double
murder case. Clearly, the report is not newly discovered, but rather
recently sought, which is not allowed by the Rules.
[23]
If at all, it only
serves to discredit the version of the prosecution which had already
been weighed and assessed, and thereafter upheld by the
Sandiganbayan.
The same is true with the statement of the alleged eyewitness,
SPO4 Cantimbuhan. His narration merely corroborates the testimonies
of other defense witnesses during the trial that they saw Senator Aquino
already walking on the airport tarmac toward the AVSECOM van when
a man in blue-gray uniform darted from behind and fired at the back of
the Senators head.
[24]
The Sandiganbayan, however, did not give weight
to their account as it found the testimonies of prosecution eyewitnesses
Rebecca Quijano and Jessie Barcelona more credible. Quijano and
Barcelona testified that they saw the soldier behind Senator Aquino on
the stairway aim and fire a gun on the latters nape. As earlier quoted,
the Sandiganbayan found their testimonies to be more consistent with
the physical evidence. SPO4 Cantimbuhans testimony will not in any
way alter the courts decision in view of the eyewitness account of
Quijano and Barcelona, taken together with the physical evidence
presented during the trial. Certainly, a new trial will only be allowed if
the new evidence is of such weight that it would probably change
the judgment if admitted.
[25]
Also, new trial will not be granted if the
new evidence is merely cumulative, corroborative or impeaching.
As additional support to their motion for new trial, petitioners also
claim that they were denied due process because they were deprived of
adequate legal assistance by counsel. We are not persuaded. The
records will bear out that petitioners were ably represented by Atty.
Rodolfo U. Jimenez during the trial and when the case was elevated to
this Court. An experienced lawyer in criminal cases, Atty. Jimenez
vigorously defended the petitioners cause throughout the entire
proceedings. The records show that the defense presented a
substantial number of witnesses and exhibits during the trial. After the
Sandiganbayan rendered its decision, Atty. Jimenez filed a petition for
review with this Court, invoking all conceivable grounds to acquit the
petitioners. When the Court denied the petition for review, he again
filed a motion for reconsideration exhausting his deep reservoir of legal
talent. We therefore find petitioners claim to be unblushingly
unsubstantiated. We note that they did not allege any specific facts in
their present motion to show that Atty. Jimenez had been remiss in his
duties as counsel. Petitioners are therefore bound by the acts and
decisions of their counsel as regards the conduct of the case. The
general rule is that the client is bound by the action of his counsel in the
conduct of his case and cannot be heard to complain that the result of
the litigation might have been different had his counsel proceeded
differently.
[26]
We held in People vs. Umali:
[27]

In criminal as well as civil cases, it has frequently been held that the fact that
blunders and mistakes may have been made in the conduct of the proceedings
in the trial court, as a result of the ignorance, inexperience, or incompetence of
counsel, does not furnish a ground for a new trial.
If such grounds were to be admitted as reasons for reopening cases, there would
never be an end to a suit so long as new counsel could be employed who could
allege and show that prior counsel had not been sufficiently diligent, or
experienced, or learned.
So it has been held that mistakes of attorneys as to the competency of a witness,
the sufficiency, relevancy, materiality, or immateriality of a certain evidence,
the proper defense, or the burden of proof are not proper grounds for a new
trial; and in general the client is bound by the action of his counsel in the
conduct of his case, and can not be heard to complain that the result of the
litigation might have been different had counsel proceeded
differently. (citations omitted)
Finally, we are not moved by petitioners assertion that the forensic
evidence may have been manipulated and misinterpreted during the
trial of the case. Again, petitioners did not allege concrete facts to
support their crass claim. Hence, we find the same to be unfounded
and purely speculative.
IN VIEW WHEREOF, the motion is DENIED.
SO ORDERED.